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T 



^J.I 




THE LIBRARY 

OF 

THE UNIVERSITY 

OF CALIFORNIA 

LOS ANGELES 

SCHOOL OF LAW 



A 



1^»1Wh»,M..:„ , 



A TREATISE 



ON THE 



LAW OF EVIDENCE. 



BY 

SIMON GREENLEAF, LL.D., 

EMERITUS PROFESSOR OF LAW IN HARVARD UNIVERSITY. 



Quorstun enim sacrae leges inventse et sancitae fuere, nisi ut ex ipsarum justitia unicuique 
jus suum tribuatur ? — Muscardus ex Ulpian. 



VOLUME L 

thirteenth EDITION, CAREFULLY REVISED, WITH LARGE ADDITIONS, 

BT 

JOHN WILDER MAY, 

AUTHOR OF "the LAW OF INSURANCE," ETC. 



BOSTON: 
LITTLE, BROWN, AND COMPANY. 

1876. 



Entered according to Act of Congress, in the year 1858, 

By James Greenleaf, 

in the Clerk's Office of the District Court of the District of Massachusetts. 

Entered according to Act of Congress, in the year 1863, 

By James Greenleaf, 

in the Clerk's Office of the District Court of the District of Massachusetts. 

Entered according to Act of Congress, in the year 1866, 

By Mrs. James Greenleaf, 

in the Clerk's Office of the District Court of the District of Massachusetts. 

Entered according to Act of Congress, in the year 1876, 

By C. K. Fuller and C. A. Croswell, 

in the Office of the Librarian of Congress, at Washington. 

T 



Cambridge : 
Press of John Wilson and Son. 



cf 



TO THE HONORABLE 



JOSEPH STORY, LL.D., 



ONE OF THE JUSTICES OF THE SUPREME COURT OF THE UNITED STATES, 
AND DANE PROFESSOR OF LAW IN HARVARD UNIVERSITY. 



Sir, — In dedicating this work to you, I perform an office 
both justly due to yourself and dehghtf ul to me, — that of 
adding the evidence of a private and confidential witness to 
the abundant public testimonials of your worth. For more 
than thirty years the jurisprudence of our country has been 
illustrated by your professional and juridical labors ; with 
what success, it is now superfluous to speak. Other Jurists 
have attained distinction in separate departments of the 
law ; it has been reserved for yourself, with singular felic- 
ity, to cultivate and administer them all. Looking back 
to the unsettled state of the law of our national institutions, 
at the period of your accession to the bench of the Supreme 
Court of the United States, and considering the unlimited 
variety of subjects within the cognizance of the Federal 
tribunals, I do but express the consenting opinions of your 
contemporaries, in congratulating our country that your life 



iv DEDICATION. 

and vigor liave been spared until the fabric of her jurispru- 
dence has been advanced to its present state of lofty emi- 
nence, attractive beauty, and enduring strength. 

But many will regard the foundation of the present Law 
School in Harvard University as the crowning benefit, 
which, througli 3'our instrumentality, has been conferred 
on our profession and country. Of the multitude of young 
men, who will have drunk at this fountain of jurisprudence, 
many will administer the law, in every portion of this wide- 
spread Republic, in the true spirit of the doctrines here 
inculcated ; and succeeding throngs of ingenuous youth will, 
I trust, be here imbued with the same spirit, as long as our 
""overnment shall remain a o-overnment of law. Your anx- 
iety to perpetuate the benefits of this Institution, and the 
variety, extent, and untiring constancy of yoiu* labors in 
this cause, as well as the cheerful patience with which they 
have been borne, are peculiarly known to myself ; while, 
at the same time, I have witnessed and been instructed by 
the high moral character, the widely-expanded views, and the 
learned and just expositions of the law, which have alike 
distinguished your private Lectures and your published 
Commentaries. With imaffected sincerity I may be per- 
mitted to acknowledge, that Avhile my path has been 
illumined for many years by your personal friendship and 
animating example, to have been selected as your associate 
in tlie arduous and responsible labors of this Institution, 
I shall ever regard as the peculiar honor and happiness 
of my professional life. Beate vixisse videar, quia cum 
Scipione vixerlm. 



DEDICATION. 



Long may you continue to reap the rich reward of labors 
so vast, so incessant, and of such surpassing value, in the 
heartfelt gratitude of our whole country, and in the pros- 
perity of her institutions, which you have done so much to 
establish and adorn. 

I am, wath the highest respect. 
Your obliged friend, 

SIMON GREENLEAF 

Cambridge, Massachusetts, 
February 23, 1842. 



ADVERTISEMENT TO THE FIRST EDITION. 



The profession being already furnished with the excel- 
lent treatises of Mr. Starkie and Mr. Phillips on Evidence, 
with large bodies of notes, referring to American decisions, 
perhaps some apology may be deemed necessary for obtrud- 
ing on their notice another work, on the same subject. But 
the want of a proper text-book, for the use of the students 
under my instruction, urged me to prepare something to 
supply this deficiency ; and, having embarked in the under- 
taking, I was naturally led to the endeavor to render the 
work acceptable to the profession, as well as useful to the 
student. I would not herein be thought to disparage 
the invaluable works just mentioned ; which, for their 
accm-acy of learning, elegance, and sound philosophy, are 
so highly and universally esteemed by the American Bar. 
But many of the topics they contain were never applicable 
to this country ; some others are now obsolete ; and the 
body of notes has become so large, as almost to overwhelm 
the text, thus greatly embarrassing the student, increasing 
the labors of the instructor, and rendering it indispensable 
that the work should be rewritten, with exclusive reference 
to our own jurisprudence. I have endeavored to state those 
doctrines and rules of the Law of Evidence which are 



Viii ADVERTISEMENT TO THE FIEST EDITION. 

common to all the United States ; omitting what is purely 
local law, and citing only such cases as seemed necessary 
to illustrate and support the text. Doubtless a happier 
selection of these might be made, and the work might have 
been much better executed by another hand ; for now it is 
finished, I find it but an approximation towards what was 
originally desired. But in the hope, that it still may be 
found not useless, as the germ of a better treatise, it is 
submitted to the candor of a Hberal profession. 

Cambridge, Massachusetts, 
February 23, 1S12. 



ADVERTISEMENT TO THE THIRTEENTH EDITION. 



This thirteenth edition will be found to contain aU the 
matter of the preceding editions, with the addition, to the 
first volume, of about nine hundred cases, selected from 
the multitude of American and English decisions reported 
since the last edition, as new or striking illustrations of 
established principles, or as containing new discussions of 
questions still unsettled. The text has been restored to 
the condition in which it was left by the author, such addi- 
tions as had been made thereto by former editors having 
been thrown into the notes, either in form or substance ; 
the summaries prefixed to the several chapters omitted, 
and catchwords to the sections substituted therefor. In 
this way, the size of the volume has been but slightly 
increased, notwithstanding the large additions. The notes 
of former editors have been for the most part retained, 
though in some cases they have been transferred, and, in a 
few, entirely omitted, or incorporated substantially into new 
notes. The notes of the several editors are not distinguished 
from each other, save that a few made by the late lamented 
Mr. Chief Justice Redfield, containing his personal views, 
have been indicated by the letter R., or in some other way 
as emanating from him. The editor has freely availed him- 
self of such material contained in the last edition of Taylor's 
Evidence as seemed to him new or useful. This, however. 



X ADYEETISEMEXT TO THE THIRTEENTH EDITION. 

consists chiefly of the more recent cases upon the different 
points in the law of evidence decided in the British courts. 
Upon examination, it was found that much of that work, 
especially of the second volume, is taken up by the divers 
new British statutes on evidence, the cases decided there- 
upon, and suggestions for amending the Law of Evidence, 
of special interest, no doubt, to the British, but of no prac- 
tical interest to the American, lawyer ; while no inconsider- 
able portion of the whole work is devoted to pleading and 
to other titles, in no way pertaining to evidence, and not 
presumably to be found in a treatise upon that subject. 
Except in these particulars, Taylor is (as is indeed apparent 
from the very candid preface itself) substantially Greenleaf, 
one section of the latter, with the notes, being extended 
into two or more sections of the text of the former, with 
not infrequent substitutions of English cases for the Ameri- 
can authorities cited by Professor Greenleaf. In fact, no 
higher compliment has been paid to the work of Professor 
Greenleaf than its presentation, substantially in form and 
actually in substance, by Mr. Taylor to the British legal 
public, with such changes and additions only as adapted it 
to their use. 

The enlargement of the Index, and frequent cross-refer- 
ences, have greatly increased the value of this edition ; 
and it is confidently believed that the work will still be 
found, as heretofore, the most satisfactory guide extant to 
the learning of the books upon tliis title of the law. 

J. W. M. 



NOTE. 



Some of the citations from Starkie's Reports, in the earlier part of this 
work, are made from the Exeter edition of 1823, and the residue from the 
London edition of 1817-20. The editions of the principal elementary writers 
cited, where they are not otherwise expressed, are the following: — 

Alciati, Opera Omnia. Basileag. 1582. 4 torn. fol. 

Best on Presumptions. Lond. ISW. 

Best Principles of Evidence. Lond. 1849. 

Canciani, Leges Barbarorum Antiquse. Venetiis. 1781-1785. 5 vol. fol. 

Carpzovii, Practicse Rer. Crim. Francof. ad Msenum. 1758. 3 vol. fol. 

Corpus Juris Glossatum. Lugduni. 1627. 6 tom. fol. 

Danty, Traits de la Preuve. Paris. 1697. 4to. 

Everhardi Concilia. Ant. 1643. fol. 

Farinacii Opera. Francof. ad Masnum. 1618-1686. 9 vol. fol. 

Glassford on Evidence. Edinb. 1820. 

Gresley on Evidence. Philad. 1837. 

Joy on Confessions. Dublin. 1842. 

Mascardus de Probationibus. Francof. ad Maenum. 1684. 4 vol. fol. 

Mathews on Presumptive Evidence. Xew York. 1830. 

Menochius de Presumptionibus. Geuevte. 1670. 2 tom. fol. 

Mittermaier, Traite de la Preuve en Matiere Criminelle. Paris. 1848. 

Peake's Evidence, by Xorris. Philad. 1824. 

Phillips and Amos on Evidence. Lond. 1838. 8th ed. 

Phillips on Evidence. Lond. 1843. 8th ed. 

Pothier on Obligations, by Evans. Pliilad. 1826. 

Russell on Crimes. 3d Amer. ed. 

Starkie on Evidence. 6th Amer. ed. 2 vols. 

Stephen on Pleading. Philad. 1824. 

Strykiorum, Opera. Francof. ad Maenum. 1743-1753. 15 vol. fol. 

Tait on Evidence. Edinb. 1834. 

Tidd's Practice. 9th Lond. ed. 

Wigram on the Interpretation of Wills. 3d Lond. ed. 1840. 

Wills on Circumstantial Evidence. Lond. 1838. 



CONTENTS. 



PART I. 

OF THE NATURE AND PRINCIPLES OF EVIDENCE. 

CHAPTER I. 

Section 

Preliminary Observations 1-3 

CHAPTER 11. 

Of Things Judicially taken Notice of without Proof . . 4-6 

CHAPTER ni. 
Of the Grounds of Belief 7-13 

CHAPTER IV. 
Of Presumptive Evidence 14-48 



PART 11. 

OF THE RULES WHICH GOVERN THE PRODUCTION OF TES- 
TIMONY. 

CHAPTER I. 
Of the Relevancy of Evidence 49-55 

CHAPTER n. 
Oi the Substance of the Issue 56-73 

CHAPTER III. 
Of the Burden of Proof 74-81 c 



XIV CONTENTS. 

CHAPTER IV. 

Section 
Of the Best Evidence 82-97 

CHAPTER V. 
Of Hearsat 98-126 

CHAPTER VI. 
Of Matters of Public and General Interest 127-140 

CHAPTER VII. 
Of Ancient Possessions 141-146 

CHAPTER VIII. 
Of Declarations against Interest 147-155 

CHAPTER IX. 
Of Dying Declarations 156-1G2 

CHAPTER X. 

Of the Testimony of Witnesses subsequently dead, absent, 

OR disqualified 163-1G8 

CHAPTER XI. 
Of Admissions 169-212 

CHAPTER XII. 
Of Confessions 213-235 

CHAPTER XIII. 
Of Evidence excluded by Public Policy 236-254 

CHAPTER XIV. 

Of the Xumhf.r of Witnesses, and the Nature and Quan- 
tity of Proof required in Particular Cases 255-274 

CFIAPTER XV. 

Of the Admissibility of Parol or Verbal Evidence to 
affect that which is Written 275-305 



CONTENTS. XV 

PART III. 

OF THE INSTRUMENTS OF EVIDENCE. 

CHAPTER I. 

Section 
Of "Witnesses, and the Means of procuring their Attend- 
ance 306-325 

CHAPTER II. 
Of the Competency of Witnesses 326-430 

CHAPTER III. 
Of the Examination of Witnesses 431-469 

CHAPTER IV. 
Of Public Documents 470-498 

CHAPTER V. 
Of Eecords and Judicial Writings 499-556 

CHAPTER VI. 
Of Private Writings 557-584 



INDEX TO CASES CITED. 



A. 

Section 

Abbey v. Lill 440 

Abbot V. Inhabitants of Heiinon 197 

V. jNIassie 291 

V. Plumbe 569, 572 

Abbott V. :\Iitchell 385 

Abby V. Goodrich 428 

Abeel v. RadcM 268 

Abercrombie v. Allen 197 

Abney v. Kingsland 51 a, 109 

Abrahams v. Bunn 414, 422 

Acero et al. v. Petroni 435 

Acker v. Ledyard 564 

Ackroyd & AVarburton's case 230 

Adampthwaite v. Synge 509 

Adams v. Balch 538 

V. Barnes 22, 531, 536 

V. Betz 502, 509 

V. Broiighton 533 

V. CouUard 116, 565 

V. Cuddy 397 

V. Davidson 190 

V. Davis 416 

V. Field 576, 581 

V. French 109 

V. Frye 568 

V. Gardiner 420 

V. Kerr 572, 575 

V. Lloyd 451 

V. McMiUon 268, 269, 551 

V. Pearson 534 

V. People 440 

V. Power 73 

V. Sanders 212 

V. Stanyan 145, 570 

V. AV^orldley 275 

Addams v. Seitzinger 122 

Addington v. Magan 66 

Addis V. Van Buskirk 66 

Adler v. Friedman 803 

Aflalo V. Fom-drinier 356 

Agawam Bank v. Sears 564 



Section 
Agriculturist Co. v. Fitzgerald 568 

Aiken v. Kilburne 237 

Aitcheson v. Maddock 80 

Aitken, ex parte 238 

Alban v. Pritchett 185, 341 

Alcock V. Cooke 239 

V. Whatmore 6 

Alden v. Dewey 852 
Alderson v. Clay 42, 97, 197, 198 

Aldrich v. Kinney 548 

Aldworth's case 502 

Alexander v. Gibson 643 

V. Harris 58 

V. Moore 305 

Alger V. Andrews 190 

Alivon V. Furnival 546 

Alkman v. Cummings 301 

Allan V. Comstock 292 

AUcott V. Strong 112, 177 

Allegheny v. Nelson 5, 20 

Allegheny Ins. Co. v. Hanlon 93, 

436 

Allen V. Allen 301 

V. Bennett 268 

V. Butler 197 

V. Denstone 113 

V. Duncan 108 

V. Furbish 281, 284 

V. Harrison 239 a 

V. Hawks 892, 420, 430 

V. Kingsbury 293 

V. McKeen 197 

V. Sapvard 24 

V. The Portland Stage Co. 125 

V. Watson 489 

AUington v. Bearcroft 892 

Allmore v. jNIills 505 

Almgren v. Dutilh 282 

Alna V. Plunmier 264 

Abler v. George 172, 178, 305 

Alston V. Taylor 120 

Alvis V. Morrison 86 



XVIU 



IKDEX TO CASES CITED. 



Alvord V. Baker 38 

Amey v. Lonj^ 2iQ, 309, 558 

Amherst Bank i'. Root 572 

Amick V. Oyler 535 

Amos V. Hughes 74 

Anderson r. Brock 333,427 

V. Caldwell 533 

V. Hamilton 251 

V. Long 54, 55 

V. Parker 104 

r. Robson 658 

V. Root 563 

V. Samiderson 185 

V. AVeston 40, 121 

Andrews v. Andrews 319 

V. Beeker 173 

V. Brown 534 

V. Fryes 451 

V. Ohio & Miss. R. R. 

Co. 239 

V. Palmer 168 

V. Solomon 239 

V. Vanduzer 55 

Androscoggin Bank v. KimbaU 38 a 

Anglesea i\ Hill 140 

Angus V. Smith 462 

Ankerstein v. Clark 69 

Annandale (Marchioness of) v. 

Harris 23 

Annesley v. D. of Anglesea 37, 244, 

469 

Anon. V. ]\Ioore 55 

Anscombe v. Shore 137, 405 

Anthony r. The State 156 

Apollou (The) 6 

Apothecaries Co. v. Bentley 79 

Appleton V. Boyd 172, 330, 452 

V. Lord Braybrook 514 

Arbor i>. Fussell 38 a 

Arbouin v. Anderson 81 a 

Archer v. Knglish 205 

t'. Walker 205 

Arding v. Flower 316, 317 

Armory v. Delamirie 34, 37 

Armstrong v. Hewitt 485 

Arnfield u. Bates 60 

Arnold V. Arnold 369, 528, 531 

V. Bisliop of Bath and 

Wells 484 

V. Cessna 281 

r. Jones 305, 568 

V. Redfern 516 

r. Rivoult 69 

V. Tourtelot 498 

Am'son i;. Harmstead 568 

Arthur r. Roberts 279 

Anindell c. Arundell 554 

1-. White 513 

Ashland i'. ^larlborough 440 



Ashley v. Ashley 86 

V. Wolcott 64 

Ashmore v. Hardy 97, 204 

Ashton V. Parker 361 

Ashton's case 156, 451 

Ashworth v. Kittridge 497 

Aslin V. Parkin 535 

Aston V. Perkes 81 

Astor V. Union Ins. Co. 280 

Atalanta (The) 31 

Atcheson v, Everitt 328, 371, 374 
Atherford i'. Beard 475 

Atkins V. Hatton 485 

V. Sanger et al. 174 

V. Tredgold 174, 176 

Atkinson v. Cummins 290 

Atlantic Ins. Co. v. Conrad 332 

Atlantic Mut. Ins. Co. v. Fitz- 

patrick 323 

Att'y-Gen. v. Boston 293 

V. Bowman 54, 55 

V. Briant 250 

V. Bulpit 432 

V. Clapham 280 

V. Davison 554 

V. Drummond 295 

V. Glasgow College 295 
V. Hitchcock 433, 449, 
455, 461 
V. Jeffreys 60 

V. Parnther 42, 81 

V. Pearson 295 

V. Proprietors ]\Ieet- 

ing-house, &c. 46 

V. Shore 295 

V. Theakstone 479, 492 

Attwoodv. Small 171 

r. Welton 369, 370, 450 

Aubert v. Walsh 38 

Auditor v. Brown 480 

Audlev's (Lord) case 343 

Augusta r. Windsor 115,116, 117 

Augusta (Bank of) v. Earle 5, 43 

Austin V. Austin 20 

V. Bostwick 112 

V. Cliambers 171 

V. Runisey 572 

V. Sawyer 271 

V. State 445 

V. Thompson 563 

V. Vesey 237 

V. Willes 3<4 

Australasia (Bank of) r. Xias 546 

Autaugu County v. Davis 108 

Avery'r. Pixley 273 

V. Stewart 288 

Aveson v. Kinnard 102, 156, 254, 

337 
Ayers v. Hewitt 569 



INDEX TO CASES CITED. 



XIX 



B. 



Brick- 



Babb V. Clemson 
Backenstass v. Stabler 
Backhouse v. Midclleton 
Bacou V. Charlton 
V. Chesney 
V. Williams 
Badger v. Titcomb 
Bagot V. Williams 
Bailey v. Bailey 
V. Haines 
V. Hyde 
V. Lmnpkin 
V. ]\IcMeckle 
V. Musgrave 
V. Taylor 
V. Woods 
Bailiffs of TeAvksbury v 

nell 
Baillie v. Hole 

V. Jackson 
Bain v. ISIason 

V. Whitehaven, &c. 
Bainbridge v. Wade 
Baird v. Cochran 
V. Fortune 
V. Gillett 
Baker v. Arnold 
V. Bradley 
V. Blunt 
V. Dening 
V. Dewey 
V. Haines 
V. Hunt 
V. Milburn 
V. Rand 
V. Ray 
V. Tyrwhitt 
Balbie v. Donaldson 
Balcetti v. Serani 
Balcombe v. Xorthup 
Baldney v. Ritchie 
Bald\Yin V. Carter 
V. Dixon 
V. Hale 
Balentine v. ^Vhite 
Balfour v. Chew 
Ballard v. Xoaks 

V. Walker 
Balls V. Westwood 
Balston v. Benstead 
Baltimore v. State 
Bamfield v. Massey 
Banbury Peerage case 
Bank v. Steward 
Bank of Australasia v. ISTias 
Hindustan v. Alison 



180, 5GS 
294 
552 

102, 205 

187 



581 

532 

532 

392 

584 

55 

386 

84 

73 

564 

164 



58 
392, 430 
485 
493 
49, 584 
289, 297 
452 
287 
52 
245 
380 
574 
272 
26 
581 
38 a 
121 
532 
37 
392, 428 
575 
52 
40 
560 
287 
392, 398 
548 
334 
505 
357 
304 
25 
17 
5 

54 

28, 81 

114 

546 

90 



V. 

Baring v. 

V. 

Barker v. 



484, 



334, 



Middlebm-y r. Rutland 440 



Bank of U. S. v. Dandridge 
AVoodstock V. Clark 
Banks v. Farquharson 

V. Skain 
Barada v. Caundelet 
Barb v. Fish 
Barbat v. Allen 
Barber v. Gingell 
V. Goddard 
I'. Holmes 
Watts 
Clarke 
Reeder 
Coleman 
V. Dixie 
V. Haskell 
V. Macrae 
V. Ray 
Barlow v. Dupuy 
V. Vowell 
Barnard v. Darling 
Barnes v. Allen 

V. Camack 
V. Harris 
V. Lucas 
V. IVIawson 
V. Trompowsky 
Baron de Bode's case 
Barough v. White 
Barr v. Gratz 
Barrett v. Allen 
V. Buxton 
V. Gore 
V. Rogers 
V. Thorndike 
V. Union Mut. 
Co. 
Barretto v. Snowden 
Barrick v. Austin 
Barrington v. Bank of Washing- 
ton 
Barronet's case 
Barrow v. Humphreys 
Barrs v. Jackson 
Bariy v. Bebbington 
V. Ransom 
V. Ryan 
Barstow's case 
Barthelemy v. The People 
Bartholomew v. Stevens 
Bartlett v. Decreet 
V. Delpratt 
V. Emerson 
V. Pickersgill 
V. Smith 
V. Wyman 
Bas V. Steele 
Bass V. Clive 
Bassett v. Marshall 



37, 116, 147, 
167, 



238, 239, 
137, 



171, 
142, 144, 



356, 



265, 
Fire Ins. 



40 
lUS 
572 
422 
331 
533 
334 
200 
329 
493 
505 
113 
342 
440 
340 
117 
416 
149 
510 
418 
302 
108 
337 
241 
207 
139 
572 
109 
191 
539 
288 
284 
547 
305 
568 



150, 



100, 
109, 



107 



281 
391 
174 

564 
18 
319 
550 
153 
281 
569 
218 
108 
561 
101 
180 
145 
363 
49 
281 
559 
196 
86 



XX 



INDEX TO CASES CITED. 



Basset t v. Porter 


80 


Beavan v. McDonnell 




53 


Batchelder v. Nutting 


558 


Beaver v. Lane 




69 


V. Sanborn 


118 


V. Taylor 




108 


Bate V. Hill 


54, 458 


Beebe v. Parker 


130, 


139 


r. Kinsey 


241, 562 


Beckley v. Freeman 


392, 


4:50 


V. llussell 


356, 358 


Beckrow's case 




5(J8 


Bateman v. Bailey 


108, 180 


Beckwith v. Benner 




245 


Bates v. Barber 


461 


V. Sydebotham 




440 


V. X. Y, Ins. Co. 


173 


Becquet v. IMcCarthy 




546 


V. Ryland 


423 


Bedell v. Russell 




70 


V. Thompson 


532 


Beech's case 




65 


Bateson v. Hartsink 


246 


Beeching v. Gower 




421 


Bathews r. Galindo 


207, 339 


Beidelman v. Foulk 




397 


Battin c. Bigelow 


41 


Beitz V. Fuller 


112 


174 


Battles V. Batchelder 


110 


Belden v. Lamb 




51a 


V. Holley 


46, 84 


V. Seymour 




26 


Batturs v. Sellers 


199 


Bell V. Ansley 




180 


Bauerman v. Radenius 


172 


V. Bruen 




284 


Baxter v. Graham 


398 


V. Chaji:or 




571 


r. Rodman 


422 


V. Firemen's Ins. Co. 




288 


Bay I'. Gunn 


400 


V. Hull Railw. Co. 




430 


Bayard v. ^lalcolm 


275 


V. Martin 




287 


Bay ley v. M'Mickle 


37 


V. Morrison 112, 


174 


323 


V. Osborne 


427 


V. Smith 




395 


V. Taylor 


564 


Bellamy v. Cains 




347 


V. Wylie 


516 


Bellew V. Russell 




347 


Baylies v. FettA-pIace 


58 


Bellinger v. The People 


451 


463 


Baylis v. The Att'y-Gen. 


291 


Bellinger's case 




224 


Bayne v. Stone 


89 


Bellows V. lugraham 




548 


Baynos v. Forrest 


70 


Beltzhoover v. Blackstock 




240 


Beach v. Mills 


118 


Benaway v. Conyne 




432 


V. Packard 


26 


Bend ;;. Georgia Ins. Co. 




292 


V. Rar. & Del. R. R 


Co. 284 a 


Bender v. Fromberg 




180 


Beachcroft v. Beachcroft 


288 


Benham v. Dunbar 




52 


Beacon Life & Fii-e Ass. 


Co. V. 


Benjamin v. Hathaway 




452 


Gibb 


292 


V. Porteus 


115 


416 


Beal c. Nichols 


445 


V. Sinclair 




305 


Beale v. Commonwealth 


19 


Benner v. Frey 




73 


V. Thompson 


322 


Bennet v. "Watson 


313 


319 


Bealev v- Shaw 


17 


Bennett v. Francis 




205 


Bealff. Beck 


187 


V. Holmes 




532 


Beaman v. Russell 


564 


V. Hyde 




55 


Beamon v. Ellice 


432 


V. Lebhart 




38 


Bean v. Qiiimby 


241 


V. Morley 




548 


Bearce v. Jackson 


24 


V. Robinson 




167 


Beard v. Hale 


455 


V. Runyou 




31 


r. Tall)ot 


145 


V. State 




369 


Beardsley v. Richardson 


108 


V. Stow 




282 


Bearss v. Copley 


462 


r. Tennessee 




6 


Beasley v. Bradlev 


358 


V. AVatson 




319 


V. Magrath 


179 


r. "NVomack 




49 


r. Watson 


281 


Bennett's case 




228 


Beatson v. Skene 


251 


Benson v. McFadden 




440 


Beauchamp v. Parry 


190 


V. Olive 




41 


Beaufort v. Crawshay 


49 


Bent V. Baker 167 


390 


418 


r. Swan 


45 


Bentley v. Cooke 334 


339 


343 


Beaumont v. Fell 


291 


V. HoUinback 




118 


V. Field 


277 


Benton v. Burgot 




548 


i;. Mountain 


481 


Bentzing v. Scott 




73 



INDEX TO CASES CITED. 



XXI 



Berd v. Lovelace 237 
Bergen v. Bennett 46 
V. The People 217 
Berkley Peerage case 104, 125, 128, 
131, 133, 134 
Bermon v. AVoodbridge 201 
Bernasconi v. Fai'ebrother 181 
Berrington d. Dormer v. Fortes- 
cue 359, 360 
Berry v. Banner 139 
Berryman v. Wise 58, 83, 92, 195 
Bertiion v. Loughman 441 
Bertie v. Beaumont 142, 154 
Berwick v. Horsfall 277 
Bests u. Jones 427 
Betham v. Benson 113 
Betts V. Badger 571 
V. Bagley 548 
V. Star 537 
Betty V. Nail 104 
Bevan v. Waters 241, 245 
V. Williams 195 
Beveridge v. Minster 254, 337 
Beverley's case 189 
Beverly v. Beverly 41 
V. Craveu 144 
Bibb V. Thomas 273 
Bicknell v. Hill 498 
Biddis V. James 480, 489, 505 
Biddulph V. Ather 139 
Bigelow V. CoUamore 277 
V. Winsor 532 
Biglow V. Sanders 118 
Biggs V. Lawrence 284 
Bitbie v. Lumley 212 
Billings V. Billings 281 
Bingham v. Cabot 491 
V. Dickey 65 
V. Rogers 348 
V. Stanley 81 
Binney v. Russell 84 
Birch V. Birch 564 
V. Depeyster 280 
Birchard v. Booth 197 
Bii-d V. Hueston 148 
V. Randall 531 
BLit V. Barlow 107, 493 
V. Kershaw 391, 416 
r. Rothwell 6 
V. Wood 395 
Bishop V. Chambre 564 
V. Cone 484 
V. Dotey 271 
Bissell V. Briggs 542, 548 
V. Edwards 505 
V. Morgan 81 a 
Bixby V. Franklin Ins. Co. 494 
Black V. Lamb 115, 172, 284 
V. Lord Braybrook 70, 514 



Black V. Woodron 165 

Blackbm-n v. Scholes 205 

Blackbm'ne v. State 41 

V. Hargrave 311 

Blackett v. Lowes 137 

V. Weir 356, 389, 395 

Blackham's case 550 

Blackwell v. BuU 2»8 

Blad i;. Bamfield 541,542 

Blade v. Ch. & C. R. R. Co. 3u5 

V. Nolan 37, 568 

Blair v. Seaver 369 

V. PeUiam 577, 581 

Blake v. Doherty 288 

V. Exch. Ins. Co. 288 

r. Pilford . 251 

V. Russ 563 

V. Sanderson 25 

V. White 109 

Blakemore v. Glamorganshire 536, 537 

Blanchard v. EUis 24 

V. Pratt 49, 461 

V. Young 74, 91, 561 

Bland v. Hasselrig 112 

V. Swafford 319 

Blaney v. Rice 301 

Blantern v. Miller 349 

Blewett V. Tregonning 468 

BUgh V. Brent 270 

Blight V. Fisher 316 

Blight's Lessee v. Rochester 25 

Bliss V. Brainerd 79, 81 c, 310 

V. Mclntire • 568 

V. Mountain 397 

Bliven v. N. England Screw Co. 293 

Blodgett V. Jordan 505 

Blood V. Goodrich 304 

V. Rideout 108 

Bloodgood V. Jamaica 175, 331 

Bloor V. Davies 392 

Blossom V. Cannon 20, 46 

V. Griffin 297 

Blower v. Hollis 511 

Bloxam v. Elsee 96 

Blundell v. Gladstone 291 

Blurton v. Toon 572 

Blythe v. Sutherland 145 

Boardman v. Reed 301 

Bob V. State 199 

Boddy V. Boddy 53 

Bodine's case 13 a 

Bodmin IVIines Co., in re 5 

Bodwell V. Osgood 8 

V. Swan 55 

Bogardus v. Trinity Church 145 

Bogart V. Brown 560 

Bogert V. Cauman 275 

Bogue V. Barlow 575 

Boileau v. Rudlin 171, 55] 



xxu 



INDEX TO CASES CITED. 



Bolin 1-. ]\Ie]lide-w 
Bolivar Man. Co. 

Man. Co. 
BoUes t'. Beach 
Boltou V. Bishop of Carlisle 
V. Corp. Liverpool 



Neponset 



37, 
2i0, 



V. Jacks 
Boltz V. Ballmau 
Bond V. Fitzpatrick 

V. Ward 
Booge V. Parsons 
Booman v. Am. Ex. Co. 
Boormau v. Brown 

V. Johnson 258, 

Boorne's case 
Booth V. Swezey 
Boothby v. Stanley 
Boothwick V. Carruthers 
Borum v. Fonts 

Boston V. Weymouth 150, 

Boston India-Kubber Factory v. 

Hoit 

Boston & P. R. R. v. Midland 

R. R. 2.58, 

Boston & Wore. R. R. Corp. v. 

Dana 93, 108, 197, 252 a, 

Boston & Wore. R. R. Corp. v. 

Old Colony R. R. Corp. 
Bostwick V. Leach 
Boswell V. Blackman 

V. Smith 
Bosworth V. Crotchet 122, 

Botham v. Swingler 95, 

Botsi'ord V. Moorhouse 
Bottoniley v. Forbes 

V. United States 
V. Wilson 391, 

Boucher v. Lawson 
BouMin V. Massie 81, 

Boullemet v. State 
Bound V. Lathrop 
Bourne v. Boston 
t'. Gatlirt'e 
V. Turner 
Bours V. Tucki;rman 
Bowditch V. Mawley 
Bowen v. Bell 
Bower v. The State 
Bowerbank v. Mouteiro 
Bowlby V. Bell 
liowles V. Neale 
Bowman v. Noiiou 
V. Noyes 
V. Rostron 

V. Sanl)oru 322, 484, 
V. Taylor 
V. \Vo6d3 
Bowsher c. Calley 



320 

17 
573 
508 
238, 
214 

26 

39 
190 
180 
485 

38 
394 
275 
214 
190 
564 

81 
233 
570 

546 

285 

469 

440 
271 
177 

38 
153 
422 
265 
2:)2 

53 
401 
488 
558 
(5 
174 
561 
293 
406 
316 
.69 

62 
218 
283 
267 

81 
239 
356 
211 
577 

22 
440 
180 



Boyd V. Ladson 118 

V. McConnell 556 

V. McLean 206 

Boydell V. Drummond 112, 268 

Boyden v. Burke 108 

V. Moore 110, 205 

Boyle V. Webster 197 

V. Wiseman 94, 451 

Boynton v. Kellogg 54, 461 

V. Willard 40 

Boys V. Williams 
Br. Bk. of Mobile v. Coleman 
Brace v. Ormond 
Braeegirdle v. Bailey 
Brackett v. Hoitt 

V. Mouutford 
V. Norton 
Bradfield v. Tupper 
Bradford v. Manley 
Bradlee v. Neal 
Bradley v. Arthen 

V. Beckett 

V. Bradley 

V. Goodyear 

V. Iloldsworth 

V. Neal 

V. Ricardo 

V. Wash., &c. Co 
Bradshaw v. Bradshaw 



Bradstreet v. Neptune Ins. Co 



Brady v. Brady 
Brain v. Preece 
Brainard v. Buck 

V. Clapp 
Bramhall v. Van Campeu 
Brandao v. Barnett 
Branden v. Gowing 
Brauder v. Ferriday 
Brandigee v. Hale 
Brandon v. Cabiness 

V. People 
Brandram v. Wharton 
Brandt v. Klein 
Brard v. Ackerman 
Brashier v. Jackson 
Brattle St. Ch 



291 

281 

474 

4 45 

513 

569 a 

488, 489 

174 

305 

353, 356 

491 

22 
527 a, 578 
118 
270 
356 
443 
297 
291) 

18, 
541 
440 
116 
197 

80 

43 
5 
242 
138 
420 
171 
331 
174 
241, 245, 564 
241 

73 



289, 



Bullard 
Hubbard 

Bray (The) Peerage 

Brazen Nose College v. Salis- 
bury 88, 

Brembridge v. Osborne 



Breton v. Cope 
Brett V. Beales 
Brewer v. Brewer 

V. Knapp 

V. Palmer 
Brewster v. Countryman 
V. Doau 



17 

189 

20 

4D1 

38 

97, 484 

137, 139, 143, 481 

109 

38 

87, 9(5 

303 

115 



INDEX TO CASES CITED. 



xxm 



Briant v. Eicke 73 

Brickell v. llulse 182 

Bridge v. Eggleston 53, ISO, 307 

V. Gray ll-j 532 

V. Wellington 423 

Bridges v. Arinoiu' 354 

Bridgewater's (Lord) case 497 

Bridgman v. Jennings 189 

397, 398 

V. Georgia 117 

V. Greenfield et al. 357 

V. Hvatt 99 

V. Wells 532 

Brigham v. Palmer 569 

V. Peters 114, 577 

V. Rogers 281, 303 

V. Smith 24 

Bright V. Sugg 73 

Brighton v. \Valker 322 

Brind v. Dale 81 

Brinkerhoff v. Remson 272 

Brisco V. Lomax 139 

Brister v. State 214 

Bristol V. Dan 171 

V. Slade 332 

Bristow II. AYright 51, 58, 60, 63, 66 

Britton's case 226 

Broad v. Pitt 247, 248, 249 

Brock V. Kent 182 

V. Milligan 369, 370 

V. Sturdivant 303 

Brockbank v. Anderson 423 

Brocket v. Foscue 26 

Brogy V. Commonwealth 163 

Bromage v. Prosser 34 

Bromfteld i\ Jones 51 

Brooks V. Barrett 75, 77 

V. Bemis 70 

V. Blanchard 73 

V. Lowry 68 

V. Tichburne 581 a 

V. White 305 

Broom v. Bradley 394 

V. Wootom 533 

Brotherton v. Livingston 358 

Brown V. Bellows 443, 444, 462 

V. Brooks 262, 292 

V. Brown 280, 356, 395, 429, 

582 

V. Burnes 358 

V. Bryne 292 

V. Cambridge 305 

V. Commonwealth 53, 156, 162, 

165 

V. Edson 505, 513 

V. Getchell 316 

V. Hicks 485, 493 

V. Howard 358 

V. KimbaU 574 



Brown v. King 


42 


V. Lasselle 


341 


V. Leeson 


253 


V. Lynch 


420 


V. Meta 


38 


V. Mooers 


469 


V. Payson 


245 


V. Philadeliihia Bank 


5 


V. Pinkham 


602 


V. Piper 


6 


V. Saltonstall 


290 



V. Slater 286, 287 

V. State 217 

V. Tlie Independence 498 

V. Thorndike 287, 288 

V. Thornton 49 

V. Wood 19, 443 

V. Woodman 83, 97 

Brown's case 218, 344 

Browne v. Gumming 471 

V. Murray 74 

BrowneU v. Pacific R. R. Co. 108 

Brubaker v. Taylor 442 

Bruce v. Nicolopopulo 38 a, 94 

V. Priest 55 

Bruff V. Conybeare 298 

Brune v. Thompson 6 

Brunswick v. INIcKeen 20 

Brush V. Blanchard 513 

V. Wilkins 484 

Bryan v. Forsyth 479 

V. Wear 483 

Bryant v. Rittenbush 858 

V. The Royal Excliange 

Ass. Co. 292, 294 

Buchanan v. Moore 145 

Bucher v. Jarratt 89 

Buck V. Appleton 35 

Buckler v. Millard 234 

Buckley v. Beardsley 268 

Buckminster v. Perry 77 

Bucknam (7. Barnum 177 

Bulkley v. Landon 68 

BuU v'. Clarke 554 

V. Loveland 246, 452 

V. Strong 356 

BuUard v. Briggs 266 

V. Ppai-sall 444 

BuUen v. Michel 139, 142 

Bullock V. Koon 87 

Bumpus V. Fisher 37 

Bunbury v. Bunbury 239, 240 

V. jNlathews 92 

Bundy v. Hart 43 

Bunker v. Shed 116 

Bunn V. AVinthrop 288 

Bunnell v. Butler 461 

Burbank v. Gould 26 

Burber v. Merriam 102 



XXIV 



INDEX TO CASES CITED. 



BurchfielJ r. Moore 


565, 


568 


Burd V. Ross 




416 


Burden v. Cleveland 




551 


V. Pratt 




445 


Burford v. McCue 




38 


Burgess v. Lane 


167, 


418 


V. ^Merrill 




356 


V. Steer 




58 


Burghart v. Angerstein 




493 


Burgiu V. Chenault 




301 


Bnrgoyne v. Showier 




564 


Burke v. Miller 


447, 


oo2 


Burleigh v. Stott 




174 


Burlen I'. Shannon 




525 


Burley's case 




229 


Burling v. Patterson 




572 


Burlington v. Calais 




175 


Burn V. Miller 




303 


Burnett v. Phillips 




70 


V. Smith 




532 


Bumham v. Adams 




118 


V. Allen 




74 


V. Ay re 




564 


V. Ellis 




113 


V. Morrissey 




309 


Bumly V. Ball 




41 


Burns v. Burns 




273 


V. Fay 




118 


Burrell v. Nicholson 


76 


474 


Bm-rough v. [Martin 




436 


Burt V. Palmer 




182 


Burtenshaw v. Gilbert 




273 


Burton I'. Driggs 


93 


561 


V. Griffiths 




49 


V. Ilinde 


391 


405 


17. Issitt 




112 


V. Plummer 


436 


437 


Bury V. Blogg 




5 


Busby V. Greenslate 




397 


Bush V. Hailing 




413 


r. Stowell 




174 


Bushell V. Barrett 




373 


Bushwood V. Pond 


58, 72 


Bussard v. Levering 




40 


Bustin V. Rogers 




118 


Butcher v. Stuart 




285 


Butcher's Co. v. Jones 




422 


Butler V. Alnutt 




40 


V. Benson 




436 


V. Butler 




423 


V. Cancer 


95 


,422 


V. Collins 




53 


V. Cooke 




392 


V. Gale 




280 


V. !Moor 




247 


V. Mountgarret 


40, 104, 


107, 
131 
421 


V. Tufts 




V. Warren 


391 


,402 



Butler V. Wright 
Buttrick v. Holden 
Butts V. Swart wood 
Buxton V. Cornish 



c. 

Cabot V. Givin 
Caddy v. Barlow 
Cadwell v. The State 
Cady V. Shepherd 
Cailland v. Vaughan 
Caine v. Horsefall 
Calder v. Rutherford 
CaldweU v. N. J. St. Nav, 
Calhoun v. Dunning 
Calkins v. Evans 
V. State 
Call V. Dunning 
Callahan v. Shaw 
Calmady v. Rowe 
Calvert v. Flower 
Calvin v. D wight 
Cambi'idge v. Lexington 



116 
532 
369 
304 



83, 92 

471 

54 

112, 174 

320, 324 

280, 294 

7H 



Co. 



74 

535 

260 

331 

569, 572 

49, 461 

45 

563 

440 

47, 109, 

293 

421 

210 

105 

174 

281 

533 

441 

37, 156, 440 

392 



Camden v. Doremus 
Cameron v. Lightfoot 
Camoys Peerage (The) 
Camp V. Dill 
Campbell v. Hodgson 

V. Phelps 

V. Rickards 

V. State 

V. Tousey 

V. Tremlow 
Canal Co. v. Railroad Co 
Cane v. Lord Allen 
Cannell v. Cm'tis 
Canney's case 
Cannon v. Jones 
Card V. Grinman 
Careless v. Careless 
Carleton v. Patterson 
V. Whitcher 
Carlisle v. Burley 
V. Eady 
V. Garland 
V. Hunley 
Carlisle (IVIayor of) v. Blamire 
Carlos V. Brook 

Carmack v. The Commonwealth 
Carmalt v. Post 

Carmarthen, Mayor, &c. v. Lewis 
Carnarvon v. Villebois 
Carne v. Litchfield 

V. Nicholl 
Carpenter v. Ambroson 
V. BuUer 



108, 



339 
490 

80 
83, 92 
165 
402 
273 
289 
322 
427 
392 
95, 422, 420 
180 
462 
211 
461 
ISO 
440 

73 
139 
451 
109 
431 

2G 



INDEX TO CASES CITED. 



XXV 



Carpenter v. Davies 84 

V. Gioff 103 

V. Havward 49 

V. Hoilister 190 

V. King 281 

V. Leonard 101 

V. AVahl 54, 462 
Carpenters, &c. of Shre-vrsbury 

V. Havward 2, 405 

Carpmael v. Powis 239, 240 

Carr v. Burdis 571 

V. Cornell 334 

V. Gale 421 

I'. Miuner 84 

Carrington v. Carnock 510 

V. Jones 155 

V. Roots 271 

V. Stimson 322 

Carriss v. TattershaD 504 

Carroll v. Norwood 144 

V. The State lOS 

V. Tyler 116, 120 

V. AVaring 39 

Carskadden v. Poorman 104 

Carson's case 65 

Carter v. Bennett 196, 204, 210, 

523 

r. Boeliem 440, 441 

V. Buchanon lOS 

V. Jones 76 

V. Pierce 408, 409 

V. Prvke 52 

V. Wilson 502 

Cartwriglit v. Williams 426 

Carver, in re 272 

V. Jackson 22, 23, 189, 523 

V. Tracy 173 

Cary v. Adkins 185 

V. Gerrish 38 

V. Pitt 577 



Caiifman v 

Spring 
Cavalier v. Collins 
Cavan v. Stewart 
Cazanove v. Vaughan 



Cong, of Cedar 

145 

118 

514 

516, 553, 554 



Case V. Mobile 




5 


V. Potter 




118 


V. Reeve 




523 


Cass V. Cameron 




409 


Cass's case 


220, 


222 


Cassidy v. Stewart 




""6 


Cassoii V. Dade 




272 


Castellana v. Peillon 




375 


Castelli v. Groome 




320 


Castle V. Bullard 


53, 


358 


CasweU v. Curtis 




40 


Casy V. O'Shaunessy 




103 


Cates V. Hardacre 




451 


V. Loftixs 




38 


Catlett V. Pacific Ins. 


Co. 


484 


CatUn V. Bell 




284 


Caton V. Lenox 




165 


Cator V. Stokes 




498 


Catt V. Howard 


179, 201 


,439 



Central Bridge Corp. v. Butler 74 

Chabbock's case 219, 222, 379 

Chad V. Tilsed 293 

Chadsey v. Greene 182 

Chadwick v. Burnley 286 

V. Upton 402 

Chaffee v. Baptist M. C. 272 

V. Thomas 420 

V. United States 37 

Chalfant v. Williams 305 

Chamberlain v. Bradley 484 

V. Carlisle 527, 531 

V. Gorham 349 

V. Willson 451 

Chamberlain's case 311 

Chambers v. Bernasconi 109, 115, 

152 

Chamblis v. Tarbox 575 

Champion v. Plummer 268 

Champney's case 257 

Champneys v. Peck 40, 116 

Chance v. Hine 423 

Chandler v. Grieves 5 

V. Home 432 

V. Le Barron 576, 581 

V. Mason 385 

V. Morton 385 

V. Yon Roedei 49 

Chanoine v. Fowler 5, 488 

Chapel V. Washburn • 181 

Chapin i'. Curtis 523 

Chapman i-. Beard 196 

V. CalUs 285 

V. Chapman 103 

V. Coffin 469 

V. Cowlan 135 

V. Davis 319 

. V. Emden 81 

V. Graves 356, 357 

r. Herrold 6 

V. Searle 207, 208 

V. Twitchell 182 

V. Walton 441 

Chappell V. Bull 24 

Chardon v. Oliphant 112 

Charleston, &c. R. R. Co. v. 

Blake 113 

Charlton v. Coombs 240 

V. Lawry 113 

Charnock v. Devings 432 

Chamock's case 379 

Chase v. Hathaway 503, 513, 518 

r. Jewett 281 

V. Lincoln 440 



XXVI 



INDEX TO CASES CITED. 



Chase i'. Lovering 357 

V. Smith 120 

V. Spencer 118 

Chatfield v. Fryer 138 

V. Lathrop 423 

Chaurand v. Angerstein 280, 440 

Cheetham v. Ward 427 

Chehnsford Co. v. Deniarest 181 

Chelsea Water AVorks v. Cowper 21, 

570 
Chenango v. Birdsall 356 

Cheney's case 289 

Cherry v. Boyd 145 

V. Skide 301 

Chesley v. Frost 5(J8 

Chess V. Chess 163, 165, 166, 168 

Chester v. Bank of Kingston 284, 305 
Cheyne v. Koops 395 

Chickering v. Failes 40 

Child V. Chamberlain 358 

V. Grace 199 

Childrens v. Saxby 348 

Childress v. Cntter 484, 493, 498 

Chippendale v. Thurston 174 

Chirac v. Reinicker 73, 237, 245 

Chitty V. Dendy 6 

Choate v. Burnham 293 

Choteau v. Ilaitt 562 

Christian v. Combe 212 

Christie v. Bishop 178 

Chubb V. Salomons 252 n 

Church V. City of Milwaukee 581 
V. Ilubbart 14, 487, 488, 514 
V. Shelton 171, 195 

Chui-chill V. FuUiam 197 

V. Suter 379, 385 

V. Wilkins 58 

Churchman v. Smith 118 

Cilley V. Tenny 303 

Cincinnati v. White 207 

Cist V. Zeigler 531 

Citizen's Bank v. Nantucket 

Steaml)oat Co. 426 

City Bank v. Adams 281 

City Bank of Baltimore v. Bate- 
man 113, 332, 452 
City Council v. King 331 
City of London v. Clerke 139 
Claflin I'. Carpenter 271 
Clagett V. Phillips 240 a 
Clancy's case 373 
Clapp V. Balch 73 
V. Mandeville 389 
V. Tirrell 26 
Clapton V. Briscoe 569 
Clarges v. Sherwin 539 
Clark V. Alexander 42, 174 
V. Barnwell 305 
V. Bigelow 440 



Cliirk V. Bradshaw 


112 


V. Carter 


426 


V. Courtney 


575 


V. Eckstein 


564 


V. Faunce 


17 


V. Fletcher 


563 


V. Gifford 


284 


V. Gleason 


112 


V. Gray 


66, 69 


V. Hopkins 


39 


V. Houghman 


191 


V. Huffaher 


209 


V. Irvin 


537 


V. Johnson 


428 


V. Kirklaud 


392 


V. Lucas 


394, 397 


V. Lyman 


40 


V. ]\Iagruder 


116 


V. jSIiuiyan 


301 


V. Eichards 


239 


V. Saunderson 


575 


V. Spence 


81, 348 


V. Trinity Church 


493 


V. Vorce 


166, 437 


V. Waits 


180 


V. Wash 


284 


V. Wilmot 


116 


Clark's case 


65 



Ex'rs V. Carrington ISO 

Ex'rs V. lleimsdyk 178, 257, 

260, 351 

Lessee v. Hall 375, 376 

Clarke v. Bank of Mississippi 489 

17. Clarke 196, 204, 207 

V. Courtney 84, 142 

V. Gannon 408, 430 

V. Robinson 551 

V. Safferey 435 

V. Wvburn 361 

Clarkson v. Woodhouse 139, 141, 143 

Clary y. Grimes 189 

Clawson V. Eichbaum 38 

Claxton V. Dare 139 

V. Swift 533 

Clay V. Langslow 181 

V. Patton 5 

r. Stephenson 320 

V. Williams 241 

Clay's case 40 

Clayes v. Ferris 409 

Clayton v. Graham 550 

t". Gregson 280 

Clealand v. Huey 164, 165 

Cleave v. Jones 237 

Cleaveland v. Flagg 301 

Cleaves v. Lord . 68 

Clement v. Brookes 457 

V. Durgin 802, 304 

dementi v. Goulding 5 



INDEX TO CASES CITED. 



XXYll 



Clements v. Hunt 

Clementson v. Gandy 

Gierke v. Isted 

Glermont v. Tulidge 

Cleveland v. Burtou 

Cleves V. Foss 

Clifford V. Hunter 

V. Parker 

V. Turrill 

Clifton V. United States 

Clinan v. Cooke 

Cline 0. Little 

Clinton v. Hooper 

Clipper (The) v. Logan 

Close I'. Gluey 

Clothier v. Chapman 

Cloutman i'. Tuuison 495 

Clough V. Bowman 289 

Cluff V. Mat. Benefit Life Ins. Co. 43 

Cluggage V. Swan 116, 120 

Cluunes v. Pezzey 37 

Coates V. Birch 241, 245 

Cobb V. Newcomb 40 

Cobbett V. Hudson 432 

V. Kilminster 581 

Cobleigh v. Young 20 

Coburn v. Gdell 451, 451 a 

Cochrau i'. Ammon 358 

Cocks V. Purdy 487 

Cockshott V. Bennett 172 

Codmau v. Caldwell 117 

Coe V. Hutton 197 

Coffin V. Anderson 4(39 

V. Jones 254, 338 

Coghan v. Williamson 572 

Cogswell V. Dolliver 118 

Cohen v. Templar 246 

Coit V. Milliken 4, 479 

V. Starkweather 288 

V. Tracy 112, 174 

Colbern's case 340 

Colclough V. Smith 301 

Cole V. Anderson 118 

V. Cole 192 

V. Hawkins 316 

V. Jessup 437 

Cole's Lessee v. Cole 376 

Coleman, in re 272 

V. Anderson 20, 46 

V. Commonwealth 49, 365 

V. Fobes 174 

V. People 53 

V. Southwick lOl 

V. Wolcott 349 

Coles V. Trecothick 269 

Colledge v. Horn 186 

Collender (•. Uunsmore 284 a 

Collett V. Lord Keith 193 

Collier o. Nokes 192 



103 


CoUier v. Simpson 


440 


288 


V. State 


161 


69 


Colling V. Tremeck 


97 


581 


Collins V. Bayntun 


571 


200 


V. Blantern 


284 


269 


V. Dorchester 


52 


445 


V. Godefroy 


310 


564 


V. Lemasters 


437 


285, 304 


V. ]\latthews 


502 


37 


V. Maule 


84 


269 


V. McCrummen 


42C 


427 


Colman v. Dobbins 


480 


296 


Colpoj-s V. Colpoys 


288 


440 


Colsell V. Budd 


39 


451 


Colson V. Bonzey 


484, 494 


137, 145 


Colt V. Miller 


66 



Columbia (Bank of) v. Magruder 423 
Columbia Ins. Co. v. Lawrence 2 

Columbia Man. Co. v. Dutch 353, 356 
Colvin V. H. M. Proc. Gen. 30 

Combe v. Corp. of London 240 a 

V. Pitt 210 

Combs V. Winchester 462 

Commercial Bank of Albany v. 

Hughes 387 

Commercial Bank of Buffalo r. 

KortwrigSit 568 a 

Commercial Bank of Natchez v. 

Smith 206 

Commonwealth v. Abbott 49 

V. AUey 101 

V. Andrews 440 

V. Anthes 49 

V. Bachelor 369, 370 
V. Baird 331 

V. Beckley 65 

V. Bigelow 97 

V. Billings 461 

V. Blood 19 

V. Bolcom 513 

V. Bonner 331 

V. Boyuton 382 

V. Bosworth 381 

V. Briggs 341 

V. Bullard 281 

V. BuzzeU 52, 371, 
419 
V. Byrou 450 

V. Cain 449 

V. Call 199 

V. Carey 156, 577, 580 
V. Casey . 161 ft 

V. Castles 573 /; 

I'. Chase 484 

V. Choate 81 c 

V. ChurchiU 461 

V. Clark 81 h 

V. Cobb 133 

V. Coe 49, 53, 577 



XXV m 



INDEX TO CASES CITED. 



Commonwealth v. Cooper 156 

V. Crocker 199 

V. Cuffeel99,220,229 
V. Cunningham 440 
V. Curtis 53 

V. Dame 373 

V. Dana 254 a 

V. Davidson 563 

V. Davis 51 a 

V. Dorsey 440 

V. Downing 382,501, 
513 
V. Drake 229, 217 
V. Dudley 265 

V. Eastman 197, 358, 
363, 445, 581 
V. Eberle 233 

V. Eddy 81 c 

V. Elisha 537 

V. Emery 91, 561 

V. Falv(iy 65 

r. Ford 513 

V. Freely 316 

V. Frost 414 

V. Galavan 434 

V. Gallaghan 200 

V. Garth 49 

V. Gibson 158 

V. Glover 380 

V. Goddard 449 

V. Goodwin 13 a 

V. Green 375, 376, 
421, 505 
V. Hargesheimer 430 
V. Harman 220, 221 
V. Harvey 197 

V. Harwood 108 

V. Hatfield 81 c 

V. Hawkins 34, 81c, 
462 
V. Hersey 37 

V. Hill 252, 366 

V. Hills 370 

V. Hogan 33 

V. Horton 53, 537 
V. Howe 223, 229 
V. Hunt 449 

V. Hutchinson 367 
V. Ingraham 469 

V. Jeffries 40, 197 
V. Kendall 54 

V. Kenney 197, 199 
V, Kimball 79 

r. King 158,225 

V. Knapp 200, 229, 
231, 379 
V. Kneeland 5 

V. Lahey 79 

V. Lanery 65 



Commonwealth v. Littlejohn 484 

V. Lyden 450 

V. Manson 335, 363 
V. Marsh 330, 334, 
353, 357, 363 
V. Maxwell 78 

V. McDonald 460 

V. McKie 81 6 

V. McPike 108, 158 
V. Montgomery 108 
r. Morey219,220,223 
V. Morgan 331, 451 
V. ]\Iorrell 445 

V. Mosler 222 

V. Mosson 455 

V. Moulton -412 

V. Mullen 451 

V. Murphy 54, 461, 

462 
V. Norcross 86 

V. Parmenter 65 

V. PauU 403 

V. Pease 284 

V. Pejepscot Pro- 
prietors 24 
V. Phillips 501 
V. Pope 44C 
V. Porter 49 
V. Richards 165 
V. Roark 509 
V. Robbins 341 
V. Roberts 158 
V. Robinson 335, 407 
V. Rogers 81 c, 373 
V. Sackett 456 
V. Samuel 78 
V. Sanborn 200, 215 
V. Shaw 449, 451, 
456, 457 
V. Shepherd 253, 344 
r. Slocum 275 
V. Smith 252, 370 
V. SneU 362 
V. Stow 80 
I'. Sturtevant 440 
V. Taylor 223 
V. Thrasher 53 
V. Thurlow 79 
V. Tilden 252 
V. Tuckerman 229 
V. Tuey 74 
V. Turner 53 
V. Vass 158, 159 
V. Waite 414, 423 
V. Walden 34 
V. AValker 37, 199 
r. Webster 13 a, 18, 
37, 54, 65, 81 b, 

576 



INDEX TO CASES CITED. 



XXIX 



Commonwealth v. "Welch 412 

V. Williams 49 

V. AVilsou 440, 469, 

497 

V. Woelper 493 

r. Wood 382 

V. Wright 451 

V. York 18, 81 b 

Comparet v. Jernegan 489 

Comstock V. Hadlyme 74, 75, 76, 77, 

409 

V. Pale 392, 430 

V. Kayford 392 

Connecticut v. Bradish 331 

Connors v. People 451 

Conover v. Bell 452 

Conrad v. Griffey 462, 469 

Conyers v. Jackson 71 

Cook V. Ashmead 117 

V. Booth 293 

V. Brown 462 

V. Loxley 207 

V. Moore 53 

i;. Parsons 272 

V. Remington 349 

i;. Soltan 46 

V. Stearns 270 

r. Totton 21 

V. Wood 84 

Cooke V. Curtis 469 

V. Jenner 533 

V. Lamotte . 88 a 

V. Wilson 6 

V. Woodrow 572, 575 

Cooley V. Norton 113, 450 

Coolidge V. Learned 17 

V. New York Firemen's 

Ins. Co. 484 

Coombs V. Coether 139, 484 

V. Winchester 52, 449 

Coon V. Swan 239 

V. The State 215 

Cooper V. Socket 564, 580 

V. Gibbon 37 

V. Cranberry 40 

V. Marsden 572 

V. MorreU 118 

V. IMowry 207 

V. Shepherd 533 

V. Smith 201, 268 

V. Slade 36 

V. Wakley 76 

V. Whitehouse 73 

Coote V. Berty 54 

Cope V. Cope 28, 253, 344 

Copeland v. Tomlin 171 

V. Watts 216 

Copes V. Pearce 103 

Copp V. Upham 452 



Copperman v. People 53 

Corbett et al. v. Barnes 533 

V. Corbett 75 

Corbin v. Adams 113, 284 

Corinth v. Lincoln 108, 192 

Cornelius v. State 108 

Cornell v. Green 165 

V. Vanartsdaleu 338 

Cornet v. Williams 84 

Cornish v. Abington 207 

V. Pugh 341 

V. SeareU 207 

Cornville v. Brighton 108 

Cornwall v. Isham 175, 333 

V. llichardson 55 

Corporations (the case of) 46 

Corps V. Robinson 197 

Corrie v. Cumming 107 

Corse V. Patterson 334 

Corsen v. Dubois 246, 558 

Corser v. Paul 197 

Cort V. Birkbeck 139 

Corwein v. Hames 331 

Cory V. Bretton 192 

Cossens, ex parte 451 

V. Cossens 23, 26 

Cossham v. Goldney 395 

Coster 17. Baring 559 

Costigan v. Mohawk & Hudson 

R. Co. 37, 74 
Cotes V. Davis 185 
Cottle V. Payne 39 
Cotton V. James 76 
V. Luttrell 358, 361 
V. Witt 310 
CottriU V. Myrick 302, 440 
Couch I'. Meeker 283, 284 
Coulson V. Walton 564 
Coulter V. Am. Ex. Co. 444 
Counden v. Clarke 289 
Com-teen v. Touse 435 
Courtnay v. Hoskins 544 
Covanhovan v. Hart 163 
Coveney v. Tannahill 245 
Covington, &c. R. R. Co. v. In- 
gles 113 
Cowan V. Cooper 304 
Cowden v. Reynolds 443 
Cowling V. Ely 179 
Co-n^jer v. E. Cowper 37 
Cox V. AUingham . 518 
V. Brain 205 
V. Copping 474 
V. Couveless 563 
V. Davis 572 
V. Hill 452 
V. Morrow 43, 488 a 
V. Painter 73 
V. Pany 27 



XXX 



rSTDEX TO CASES CITED. 



Cox V. Williams 385 

Coxon V. Lyon 61 

Coye V. Leach. 30 

Coyle V. Coyle 8i 

Cozzens v. Higgins 6 

Crabtree v. Clark 561 

Crafts i: Hibbard 301 

Craib v. D'Airth 173 

Craig I'. Browii 505, 506 

V. Craig 469 

V. Cundel 392 

V. State 401 

Craigin v. Carleton 527 a 

Crake v. Crake 43 

Crandall v. People 331 

Crane c. Elizabeth 281 a 

V. :Marshall 109, 570 

V. Morris 23, 33 

Crary r. Sprague 163 

Craven's case 65 

Cravin v. Shaird 118 

Crawford v. ]\Iorrell 56 

V. Spencer 281 

Cray v. Halls 201 

Creamer r. Stephenson 285 

Crease v. Barrett 103, 128, 130, 130, 

139, 153, 189, 584 

445 



Creeby v. Carr 
Creed, in re 
Crenshaw v. Davenport 
Crew V. Blackburn 

V. Saunders 
Criddle v. Criddle 
Crippen v. Dexter 
Crisp V. Platel 
Crispin v. Daglioni 

I'. Williamson 
Critchlow v. Parry 
Crocker v. Crocker 

V. Walsh 
Crofton V. Poole 
Crofts r. ]\Iarshall 
Cromack i\ lleathcote 
Cronk v. Frith 
Crosby v. Percy 

V. AVadsworth 
Cross V. Kaye 
V. :Mill 
Crossfield's case 
Croudson v. Leonard 
CroughtOn i-. Blake 
Crowley i'. Page 52, 81, 449, 462 

Crowninshield v. Crowninshield 74, 



41 

51a 

475 

475 

190 

469 

240 

94, 546 

60 

196 

289 

38 

195 

280 

240, 241 

572 

292, 572 

271 

195 

485 

255 

5, 541 

142 



92 



Crowninshicld's case 
Crowther v. Ilopwood 
Cubliison v. McCreaiy 
Cudlip V. Rundle 
Culkiu's case 



to, to, it 

111 

373 

369 

60 

05 



Cullen's case 


451 


Cimiberland Bank v. Hall 


564 


Cummin v. Smith 


195 


Camming v. French 


192 


Cummings v. Arnold 


302, 304 


Cuudell V. Pratt 454, 


456, 459 


Cunliffe v. Sefton 


572, 574 


Cunningham v. Knight 


428 


V. Otis 


320 


V. Wrenn 


296 a 


Cupper V. Newark 


353 


Curren v. Crawford 


117 


Currie i'. Child 


572 


Curry v. Lyles 


26 


V. Raymond 


485 


Cm-tis V. Belknap 


573 6 


V. Central Railroad 


323 


V. Graham 


358, 389 


r. Groat 


533 


V. Herrick 


40 


V. March 


5,488 a 


V. Rickards 


38 


V. Strong 


309, 370 


r. Wheeler 


74 


Curzon v. Lomax 


130, 139 


Cushing V. Billings 


74 


V. Rice 


284 


Cushman v. Loker 


375, 420 


Cussons V. Skinner 


569 a 


Cutbush V. Gilbert 84 


116, 120 


Cutler V. Pope 


271 


V. Wright 480, 488 a 


Cutter V. New'^ling 


187 


V. Powell 


292 


V. "Wright 


43 


Ci:tts V. Pickering 


245 


Cutts, in Error v. United States 566 


Cuyler v. McCartney 


190 



D. 

Da Costa r. Jones 

Daggett V. Shaw 

Dailey v. N. Y. & X. H. Railw. 

Daily v. State 

Dale V. Ilumfrey 

Dalison c. Stark 

Dalrymple v. Dalrjanple 

Dalston v. Cotesworth 

Dan et al. v. Brown 172, 174, 



Dana v. Fielder 
Daniel v. Daniel 

V 
V 



North 
Pitt 
Wilkin 
Daniels v. Conrad 



V. 



142 



253 
109 

156 

5 

2S2 

90 

488 

;}7 

176, 
273 
292 
239 
17 
182 

, 145 
449 



INDEX TO CASES CITED. 



XXXI 



Daniels v. Hudson River Fii-e 

Ins. Co. 441 

V. Potter 111, 170 

Darby v. Ouseley 231, 439, 440 

Darling r. Westmoreland 52 

Dartmouth College v. Woodward 331 

Dartmouth (Countess) v. Roberts 189 

Dartmouth (Lady) v. Roberts 46, 512 

Davenport v. Freeman 385 

V. McKinuie 559 

V. The Commonwealth 49 

David V. Moore 348 

Davidson v. Bloomer 572 

V. Cooper 568 

V. Harrison 174 

Davies v. Davies 408, 463 

V. Edwards 112, 174 

V. Humphreys 115, 152 

V. Lewis 137 

V. Lloyd 115, 147 

V. Lowndes 1()5, 131 

V. Morgan 134, 135, 154, 

333, 395 

V. Morris 333 

V. Pierce 109, 147, 189 

V. Ridge 176 

V. Waters 241 

Davis V. Barr 421 

V. Barrett 320 

V. Barrington 281 

V. Campbell 109 

V. Carlisle 564 

V. Dale 445 

V. Dinwoody 334, 340 

V. Fuller 115, 130 

V. Jenney 564 

V. Jones 284 

V. IMason 75, 440 

V. Rainsford 301 

V. Robertson 209 

V. Salisbury 349 

V. Shields 268 

V. Spooner 397, 508 

r. State 164, 165 

V. Todd 558 

V. Wood 99, 524 

Davis & Carter's case 374 

1 )avlin V. Hill 283 

Dawkins v. Silverlock 5 

Daws V. Shed 187 

Dawson v. Coles 173 

Day V. Cooley 444 

V. Moore 513 

V. Trigg 301 

Dayrell v. Bridge 510 

Deacle v. Hancock 134, 135 

Deacon's case 256 

Deady v. Harrison 180 

Dean v. Commonwealth 37 



Dean v. Dean 266 
t'. Knight 444 
Dean, &c. of Ely v. Caldecott 150 
Dearborn r. Cross 302, 304 
Deas V. Darby 118 
De Bode's case 109 
De Cossfe Brissac v. Rathbone 546 
Decker, ex parte 568 a 
Deering v. Sawtel 385 
De la Chaumette v. Bank of Eng- 
land 81 a 
Delacroix v. Bulkley 303 
Delafield i\ Freeman 392 
V. Hand 503 
Delesline v. Greenland 27, 184 
Dellone v. Rehmer 387 
Deloah v. Worke 510 
Delogny v. Rentoul 192 
Den V. Clark 556 
V. Downam 437 
I'. Herring 145 
V, Johnson 341 
V. Oliver 208 
V. Southard 145 
V. Vreelandt 503 
Denn v. Cornell 24 
V. Fulford 507 
V. McAlister 84 
V. Page 301 
V. Spray 139 
V. White 185, 341 
Dennett v. Crocker 87 
V. Dow 443 
V. Lawson 426 
Denning i'. Roome 484 
Dennis v. Codrington 237 
Dennis's case 225 
Denslow v. Fowler 559 
Denton v. State 102 
Depeau v. Hyams 416 
Depue V. Place 581 
Derby v. Gallup 440 
De Rosnie v. Fairlie 390 
De Rutzven r. Farr 150, 154 
Desborough r. Rawlins 242, 244 
Descadillas v. Harris 416 
Deshon i'. Merchants' Ins. Co. 469 
Despau v. Swindler 6 
De Symonds v. De la Conr 394 
Devonshire (D. of) v. Lodge 293 
Devries v. Phillips 451 
Dewdney c. Palmer 421 
Dewey v. Dewey 272, 572 
V. Field 207 
De Whelpdale v. Milburn 189, 210 
Dewhm-st's case 228 
De Wolf V. Strader 239 
Dexter v. Hayes 40 
Deybel's case 6 



xxxn 



INDEX TO CASES CITED. 



DezeU v. Odell 

Dicas V. Lawson 

Dickenson v. Coward 

V. Dickenson 
V. Fitchburg 
V. McCraw 
V. Prentiss 
V. Shee 
V. Valpey 

Dickerman v. Graves 



207 

319 

195 

192, 381 

440 b 

519 

399 

. 445, 447 

207 

254, 335, 337, 

344 

Dickinson v. Commissioner 281 

Dickson v. Evans 78 

Digby V. Stedman IIG 

V. Steele 97 

DiUon V. DiUon 440 b 

V. Harris 288 

Dillon's case 220 

Dimick v. Brooks 548 

Dimsdale v. Dimsdale 38 a 

Dinkins v. Samuel 35 

Di Sora (Duchess) v. PhiUips 514 a 

D'Israeli v. Jowett 484 

Ditchburn v. Goldsmith 253 

Divol ('. Leadbetter 195, 207 

Dix V. Otis _ 281 

Dixon V. Cooper 115, 416 

V. Hammond 207 

V. NichoUs 5 

V. Sinclear 530 

V. Vale 451 

Doak V. Wiswell 532 

Dobbs V. Justices 108 

Dodd V. Norris 54, 451 

Doddington v. Hudson 409 

Doddington's case 26 

Doe V. Allen 197, 291 

V. Andrews 41, 245 

V. Aikwright 4«4, 493 

V. Askew 484 

V. Austin 109, 189, 207 

V. Barnes 75, 92, 493 

V. Bell 263 

V. Benjamin 586 

V. Benson 2s0 

V. Beviss 300, 584 

V. Beynon 142, 291 

V. Biggs 197 

V. Bingham 2G5, 406, 568 

V. Bird 186 

V. Brawn 83 

V. Bray 104, 485 

V. Burdett 570 

V. Burt 287 

V. Burton 151 

V. Campbell 109 

V. Caperton 272 

V. Carpenter 272 

V. Cavtwright 89, 90, 150, 484, 493 



Doe V. 

V. 



Catamore 

Chichester 

Clifford 

Cole 

Cooke 

Coombs 

Coyle 

Davies 

Davis 

Deakin 

Derby 

Durnford 

E. of Jersey 

Edwards 

Errington 

Flemmiug 

Ford 

Foster 

Frankis 

Freeland 

Galloway 

Gilbert 

Green 

Greenlee 

Grey 

Griffin 

Gwillim 

Harris 

Harvey 

Hathaway 

Hawkins 

Hertford 

Hilder 

Hirst 

Iliscocks 

Hodgson 

Holton 

Hubbard 

Huddart 

Hurst 

Huthwaite 

Jack 

Jesson 

Johnson 

Joinville 

Jones 

Keeling 

Keley » 

Kemp 

Lambly 

Langdon 

Langfield 

Lea 

Lewis 

Lloyd 

Long 

Lord Geo. Thynne 

Lyfoid 
, !^iaisey 



564 

287, 291, 301 

560 

189 

46 

81 

94 

49, 103, 134, 570 

272 

41, 570 

164 

569 

287 

73 

73 

107 

284, 285 

164, 197 

198 

286 

301 

84, 241 

109 

84 

561 

41, 103 

277 

241 

87 

574 

113 

246 



568 

295 rt 

560 

287 

291, 301 

535 

46 

288, 289, 291 

84 

41 

78, 335, 573 

ocg 

109, 147, 189 

49, 142 

559 

53 a 

280 

211, 246 

109, 584 

208 

558 

24 

73 

154 

301 

889 



INDEX TO CASES CITED. 



XXXI U 



Doe V. Manifold 

V. Martin 277, 

V. Mason 

V. Mew 

r. Michael 

V. Miles 

V. IMorgan 

V. Morris 

V. Murray 

V. Nepean 

V. Newton 

V. Palmer 

V. Passingham 

V. Payne 

V. Pearce 

V. Pegge 

V. Pembroke (E. of) 

V. Penfold 

V. Perkes 

V. Perkins 436, 

V. Pettett 

V. Phelps 

V. Phillips 

V. Preece 

V. Pulman 

V. Putman 

r. Pye 

V. RandaU 

V. Reed 

V. Richards 

V. Rickarby 

V. Ries 

V. Roast 

V. Roberts 

V. Robson 

V. Ross 

V. Rowe 

V. Rowlands 

V. Samples 

V. Seaton 

V. Shelton 

17. Sisson 

V. Sleeman 

V. Smart 

V. Smythe 

V. Somerton 

V. Spitty 

V. Stacy 

V. Staple 

V. Statham 

V. Steel 

V. Stephenson 

V. Stiles 

V. Suckermore 576, 577, 

V. Sybourn 46, 

V. Tarver 

V. Taylor 

V. Thomas 

V. Tooth 



116, 

73, 84, 245, 



240, 



272 
287, 291 
130 
518 
154 

97 
289 
561 
166 

41 

578, 580 
564 
144 

25, 109 
142 
207 
104 
42 
273 

437, 438 

109, 189 
144 
141 

406, 534 
558 
143 
197 
103 
46 
186 

109, 189 
561 
291 
142 

147, 153 

560, 582 

73 

74, 81 

21 

241, 484 

23 

52, 130 

136 

75 

207 

561, 562 
561 
154 

46 

23 

210 

469 

570 

579, 580 
212, 551 
134, 578 

291 
145, 246 
333, 391 



Doe V. Turford 40, 115, 116, 120, 

V. Tyler 151, 386, 390, 

V. Vowels 116, 

V. Wainwright 

V. Watkins 

V. Watson 

V. Webber 109, 

V. Wheeler 

V. Whitcomb 115, 151, 

V. Wilde 

V. AVilkins 

t'. Williams 147, 392, 

V. "\A'ilson 

V. Wolley 21, 

V. '\\'ombweU 

V. Young 
Doe d. Gord v. Needs 
Taylor v. Roe 
Doker v. Hasler 254, 

Dolby V. lies 

Dolder i'. Lord Huntingfield 
Dole V. Allen 
Donaldson v. Jude 

V. Winter 
Doncaster v. Day 
Douelson v. Taylor 
Donn V. Lippman 
Donnel i'. Jones 
Donnelly v. State 
Donnohoo v. Brannon 
Doolittle V. Holton 
Doon V. Donaper 
Doorman v. Jenkins 
Dorlon v. Douglass 
Dome V. Southwork Man. Co. 
Don* V. Fenno 

V. Mimsell 
Dorset (D. of) v. Ld. Hawarden 
Dorsey v. Dorsey 189, 

Doty V. Wilson 421, 

Douglas V. Hart 

V. Saunderson 104, 349, 
Douglass V. Branch Bank 
V. Mitchell 
V. Reynolds 
V. Spears 

V. Tousey 54, 55, 

Dover v. Marston 
Dow V. Sawyer 
Dowden v. Fowle 
Dowling V. Dowling 
Downer v. Chessborough 49, 

V. Rowell 
Downs V. Cooper 25, 

Dows V. McMichael 
Dowton V. Cross 
Drake v. Henley 
V. iSIerriU 
V. Mitchell 



147 
584 
151 
180 
240 
97 

no 

286 
154 
406 
571 
406 
581 
570 
197 
92 
290 
145 
337 
211 



510 
509 
163 
421 
546 
435 
445 
506 

40 

87 
108 
251 
114 

69 
284 
292 
545 
429 
118 
575 
5 

44 
288 
268 
461 
378 
116 
180 

53 
276 
436 
183 
531 
181 
385 
532 
533 



xxxiv 



INDEX TO CASES CITED. 



Drake v. Mooney 40 

Dranguet v. Proudhomme 74 

Draper v. Garratt 60 

V. Sykes 180 

Drayton v. Dale 207 

V. WeUs 163 

Drennen v. Liadsey 462 

Drew V. Wood 450 

Drew's case 219 

Drinkwater v. Porter 130, 140 

Drouet v. Rice 20 

Drown v. Smith 207 

Drowne v. Stiuipson 319 

Driunmond v. Attorney-General 280 

V. Magruder 506 

V. Prestman 187 

Drummond's case 156 

Drumright r. Philpot 112 

V. State 216 

Du Barre v. Livette 239, 247 

Du Bost V. Beresford 100, 101 

Duchess of Kingston's case 248, 436, 

523 
Ducket V. Williams 320 
Ducoigne v. Schreppel 118 
Dudley v. Grayson 484 
V. Summer 572 
Duel V. Fisher 390 
Duffield V. Scott 180 
Duffin V. Smith_ 240, 241, 245 
Dugan V. Seekright 301 
Duke V. Pownall 427 
Dunbar v. ]Marden 572, 575 
V. Mvdrj 128 
Duncan v. Beard 142 
V. Hodges 568 a 
V. Mickleham 389 
Duncomb v. Prindle 480 
Dundas v. Lord Weymouth 69 
Dunham i'. Branch 426 
V. Riley 559 
Dunham's Appeal 440 
Duulap V. Waldo 506 
Dunn t: Aslett 444, 467 
V. ]\Iurray 532 
V. Packwood 386 
V. Snell 190 
V. Snowdon 41 
V. The State 158 
V. Whitney 118 
Dunning v. Roberts 268 
Dunraven v. LlewelljTi 129, 145 
Dupuy V. Truman 93, 437 
Durell V. I5oderley 441 
V. Evans 97 
Durham (Bp. of) v. Beaumont 469 
Durkee v. Lcland 239 
V. Vermont Central Rail- 
road 84 



Durore's case 




65 


Durston v. Tutham 




60 


Dutillet V. Blanchard 




479 


Dutton V. Gerrish 




281 


V. Woodman 


112, 177, 


198, 




467 


532 


Duval V. Bibb 




26 


Dwight V. Linton 


288 


322 


Dwinel v. Pottle 




117 


Dwinell v. Larrabee 




561 


Dv^^er V. Collins 


24c 


561 


Dyer v. Ashton 




205 


V. IMorris 




432 


V. Smith 




488 


V. TymeU 




848 


Dyke v. Aldridge 




180 


Dykers v. Townsend 




268 


Dyson v. Wood 




513 



E. 



Eagleton v. Gutteridge 




568 


Eames v. Eames 




42 


Earle v. Baxter 




20 


V. Lewis 




142 


V. Picken 45, 


200 


203 


V. Rice 




284 


V. Sawder 




118 


Easby v. Aiken 




118 


Eason v. Chapman 




461 


East V. Chapman 




451 


East India Co. v. Campbell 




451 


V. Evans 




349 


V. Gossing 




416 


Eastman v. Bennett 




108 


V. Cooper 




532 


I'. IVIartin 




105 


V. Tuttle_ 




207 


V. AVinship 


167 


418 


Eaton V. Alger 




74 


Eddy V. Gray 




458 


Edge V. Pemberton 




52 


Edgell V. Bennett 




254 


Edgerly v. Emerson 


279 


305 


Edgerton c. Jones 




276 


V. ^^'olf 




170 


Edie V. East India Co. 




5 


Ediniston v. Schwartz 




50(1 


Edmonds v. Lowe 391, 


401 


416 


V. Rowe 




371 


V. AValter 




435 


Edward Altham's case 




301 


Edwards v. Crock 




102 


t'. Evans 




584 


V. ]\Iattliews 




76 


r. Weeks 




302 


?". Williams 




197 


Egan r. Larkiu 




49 



INDEX TO CASES CITED. 



XXXV 



Egg V. Barnet 




38 


Ennos v. Thompson 




276 


Eggleston v. Speke 




179 


Enos V. Tuttle 




108 


Eicke V. Nokes 


241, 


245 


Ensign v. Webster 




212 


Eld V. Gorham 




480 


Enterprise (The) 




113 


Elden v. Keddell 




519 


Ephraims v. Murdoch 


164 


165 


Elder v. Warfield 




118 


Ereskine v. Mm-ray 




5 


Elderton's case 




6 


Ernest v. Brown 




73 


Eldiidge v. Hawley 




196 


Erskine v. Boyd 




322 


V. Knott 


20,45 


V. Davis 




41 


Eldridge's case 




217 


V. Plummer 




271 


Elfe V. Gadsden 




286 


Eskridge v. State 




229 


Elkin V. Janson 


78, 79, 80 


Estill V. Taul 


530 


531 


Elkins V. Hamilton 




108 


Estrella (The) 




4 


Ellicott V. Pearl 


137 


146 


Eustis V. Parker 




175 


Elliott V. Evans 




6 


Evans v. Birch 




80 


V. Heath 




164 


V. Eaton 389, 421, 


423 


552 


V. Piersol 


103, 104 


132 


V. Getting 




497 


V. Porter 




533 


V. Gibbs 




354 


V. Smith 




207 


V. Gray 




423 


EUis V. Ellis 




86 


V. Hettick • 


365 


389 


V. Great West. R. 


R. Co. 


33 


V. King 




69 


V. Park 




5 


V. JSIorgan 




107 


V. Saltan 




249 


V. Rees 139, 


313 


319 


V. Smith 




323 


V. Roberts 




271 


V. Thompson 




292 


V. Smith 




341 


V. Watson 




210 


V. Tarleton 




548 


V. WiUard 




305 


V. Yeatherd 




395 


Ellison V. Cookson 




296 


Everett v. Lowdhan 




432 


Ellmaker v. Bulkley 


445 


447 


Everingham v. RoundeU 




84 


Ellsworth V. Moore 




38 


Ewer V. Ambrose 


442 


443 


Elsam V. Faucett 


54 


102 


Ewins V. Gold 




392 


Elston V. Wood 




179 


Exchange Co. v. Boyce 




498 


Elting V. Scott 




212 


Ex parte D'Obree 




19 


Elton V. Larkins 


186 


449 


Kip 




175 


Elwood V. Deifendorf 


189, 


420 


McXeU 




316 


Ely V. Ely 




564 








Emerson v. Blonden 




185 








V. Brigham 




398 


F. 






V. Fisk 




562 








V. Lowell Gas Light Co. 


440 


Fabens i'. TirreU 




81a 


V. Murray 




564 


Fabyan v. Adams 




322 


V. Providence 




420 


Facey v. Hurdon 




49 


V. Tolman 




570 


Fairchild v. Dennison 




118 


V. White 




103 


Faircloth v. Jordan 




560 


Emei-ton v. Andrews 




396 


Fairfield Turn. Co. v. Thorp 




332 


Emery v. Berry 




489 


Fairlie v. Denton 


198 


199 


V. Fowler 


165, 


523 


V. Hastings 


113 


114 


V. Grocock 




46 


Fairmaner v. Budd 




212 


V. Twombly 




472 


Fairtitle v. Gilbert 




24 


Emmerson v. Heelis 


269 


271 


Falkner v. Earle 




293 


Emmett i'. Butler 


356 


358 


Falkner & Bond's case 




217 


Emmons v. Hayward 




75 


Falls V. Belknap 


175 


331 


V. Littlefield 




26 


Fahnouth v. Moss 




248 


V. Oldliam 




20 


V. Thomas 




271 


Empson v. Griffin 




73 


(Earl of) V. Robbing 


564 


England v. Slade 




25 


(Lord) V. George 




405 


Engles V. Bruington 




572 


Faner v. Turner 




108 


English V. Sprague 




513 


Fanning v. State 




37 


Ennis v. Smith 


514 


525 


Farley v. King 




552 



XXXVl 



INDEX TO CASES CITED. 



Fanners' Bank v. Whitehill 115, 116, 

147 

Farmers' & Mech. Bank v. Boraef 437 

V. Day 299 

U.Ward 489 

Farnsworth v. Briggs 518, 519 

Farr v. Payne 41 

V. Swan 485 

Farrah v. Keats 319 

Farrant v. Spencei 288 

FaiTar v. Farrar 265 

V. Merrill 46 

V. Stackpole 286, 293 

V. AVarfield 440 

Farrow v. Bloomfield 4tj3 

Farwell v. Hillard 539 

Fassett v. Brown 572 

Faucort v. Bull 396 

Faunce v. Gray 176 

Faxon v. HoUis 117, 118 

Fay V. Prentice 5 

Fazakerly v. Wiltshire 6 

Feemster v. Ringo 5 

Fell V. Young 570 

FeUows V. Williamson 108 

Felter v. MuUiner 510 

Fenn v. Granger 330, 353, 354, 452 

Fenner v. Lewis 187 

V. Lon. & S. E. R. R. Co. 239 

Fenno v. Weston 199 

Fenwick v. Bell 440 

V. RatcUff 284 

V. Read 154 

V. Reed 239 

V. Thornton 179 

Fenwick's case 251 

Ferdinand v. State 5 

Ferguson v. Harwood 56, 68, 69, 506 

V. Mahon 546 

V. Sulphen 284 

Fernandez, ex parte 451 

Fernandis & Hall v. Henderson 369 

Ferrand v. Milligan 584 

Ferrer's case 19 

Ferrers v. Arden 533 

V. Shirley 577 

Ferris v. Ward 19 

Fessenmeyer v. Adeock 38 

Fetherly v. Waggoner 570 

Fiedler v. Smith 66 

Field V. Holland 178 

V. Mitchell 394 

V. Snell 428 

V. Winslow 6!) 

Fife V. Commonwealth 81 c, 219 

Fifield V. Richardson 108 

V. Smith 422 

Filmer v. Gott 284 

Finch V. Bishop of Ely 474 



Finn's case 


163 


Firkin v. Edwards 


562 


Fischer v. Morse 


329 


Fish V. Hubbard 


300 


V. Skut 


34 


V. Travers 


75,76 


Fisher v. Bartlett 


207 


V. Dane 


18 


V. Diebert 


296 rt 


i;. Kitchingman 


510 


V. True 


190 


V. Tucker 


112 


V. Willai'd 


421 


Fiske V. Ronald 


451 


Fitch V. Bogue 


349, 558 


V. HiU 


342 


V. Smallbrook 


375 



Fitchburg Bank i\ Greenwood 288 

Fitler v. Shotwell 485, 493 

Fitzgerald v. Elsee 572 

V. Fauconberg 564 

Fitzhugh V. Wiman 305 

Fitzpatrick v. Fitzpatrick 290 

Fitzvvalter Peerage 579, 580 

Flagg V. Mann 421 

V. Mason 109 

Flanagan v. People . 81 c 

Flanders v. Davis 38 n 

Fleming v. Gilbert 302, 304 

V. Gooding 207 

Flemming v. Clark 86 

Fletcher v. Braddyl 40 

V. B. & M. R. R. 449 

V. Froggatt 201 

V. Willard 305 

Flight, ex parte 285 

Flindt V. Atkins 514 

Flinn v. Calow 281 

V. M'Gonigle 558 

Flint V. Allyn 356 

Flourenoy v. Durke 518 

Flower v. Herbert 204, 207 

Floyd V. Bovard 445 

V. Ricks 5 

114 

581 

Folkes V. Chadd 53, 440 

Follain v. Lefevre 6 

Folsom I'. Mancliester 252 a 

V. IMussey 304 

Fonnereau v. Poyntz 288 

Foot V. Glover 532 

V, Tracy 55 

Foote V. Cobb 572 

V. Havne 239 

Forbes v. Wale 21, 144, 349, 570 

Ford V. Ford 461 

V. Gray 23 

Forrest v. Shores 26 



Fogg V. Child 
V. Dennis 



INDEX TO CASES CITED. 



XXXYU 



Forrester v. Pigou 167, 392, 395, 418 
Forshaw i>. Lewis 
Forster v. Hale 
Forsyth v. Ganson 
Forsythe v. Norcross 
Fort V. Clarke 
Fortescue & Croak's case 
Foss V. Haynes 
Foster v. Alanson 
V. Beals 



V. Earl of Derby 



Hall 
V. Jolly 
V. Mackay 
V. Pierce 
V. Pointer 
V. Shaw 
V. Sinkler 
V. TruU 
Foster's case 



239, 241, 559 

26G 

176 

117 

104, 204 

349 

456 

303 

212 

536 

237, 240, 241 

281, 304 

558 

451 

562 

165, 539 

118 

521 

65 

Fotheringham v. Greenwood 387, 395 

Fouke V. Flemming 480 

Foulkes V. Selway 54, 101 

Fountain v. Coke 347 

V. Young 241 

Fonts V. State 220, 220 a 

Fowler v. Coster 75, 76 

V. Etna Ins. Co. 54 

V. Merrill 323 

V. Savage 539 

Fox V. Adams 347 

V. Clifton 207 

V. Jones 472 

V. Keil 569 

V. Whitney 385 

V. Widgery 25 

Foxcroft V. Nevens 187, 356 

Foy V. Mtna Ins. Co. 441 

France v. Lucy 562 

Franchot v. Leach 284 

Francia's case 217, 235 

Franklin Bank v. Freeman 416 

Eraser v. Harding 430 

V. Hopkins 494 

V. Marsh 179, 427 

Frayes v. Worms 54^ 

Frazier v. Laughlin 356 

Frear v. Evertson 172, 829, 347, 353 



V. Hardenbergh 

Free v. Hawkins 

Freeholders, &c. v. State 

Freeland v. Heren 

Freeman v. Ai-kell 
V. Brittia 
V. Cooke 
V. Lucket 
V. Morey 
V. PhiUips 



271 
281 

20 
197 
252 
385 
207 
387 

40 

129, 132, 135, 

139 



Freeman v. Thayer 




20 


V. Walker 




210 


French v. French 




550 


V. White 




53 


Friedlander v. London Assur. Co. 


443 


Frith V. Barker 




280 


Frontine v. Frost 




80 


Frost V. Everett 




304 


V. HoUoway 




459 


V. Shapledgh 




521 


V. Spaulding 




301 


Froude v. Hobbs 




49 


Frye v. Barker 


118 


174 


V. Gragg 




164 


Fuller V. Crittenden 


212 


305 


V. Hampton 


175 


192 


V. Rice 




822 


V. Wheelock 




417 


Fulton V. Hood 




440 


Fulton Bank v. Stafford 




447 


Furber v. Hilliard 




362 


Furbush v. Goodwin 


805 


468 


Furly V. Newham 


312 


320 


Furman v. Ray 




118 


Furneaux v. Hutchins 




52 


Fui-neaux's case 




65 


Fursden v. Clogg 113 


149 


152 


Fyler v. Givens 




268 


Fyson v. Kemp 




508 



G. 



Gabay v. Lloyd 292 

Gainsford v. Grammar 245 

Galbraith v. Galbraith 423 

Gale V. Lincoln 197 

V. Nixon 268 
Galena, &c. R. R. Co. v. Fay 108, 

462 

Gandolfo v. State ' 55 

Garber v. State 108 

Garbutt v. Simpson 458 

Garden v. Creswell 319 

Gardere v. Columbian Ins. Co. 514 

Gardiner v. Croasdale 61 

V. McMahon 113 

Gardner v. Chase 305 

V. Moult 182 

V. People 37 

V. Way 118 

Garey v. Nicholson 201 

Garlock v. Geortner 38 

Garnett v. Ball 184 

Garrels v. Alexander 577 

Garrett v. Banning 197 

V. Stewart 26 

Garrott r. Johnson 165, 532 

Garth v. Howard 113 



XXXVIU 



INDEX TO CASES CITED. 



Gartside v. Outram 




240 


Garvin v. Wells 




5 


Garwood v. Dennis 




24 


V. Garwood 




288 


Gaskill V. Skeene 




198 


Gass V. Gass 




175 


V, Stinson 42] , M5 


461 


, 554 


Gathercole v. Miall 




558 


Gaiil V. Fleming 




76 


Gay V. Bowen 




112 


Geach v. Ingall 


73,70 


Gebhardt v. Shindle 




430 


V. Skinner 




365 


Geery v. Hopkins 




474 


Gelston v. Hoyt 


541 


543 


General i'. Hitchcock 




450 


Gening v. The State 




79 


George v. Joy 


305 


430 


V. Kimball 




409 


V. Pierce 




167 


V. Sargent 




350 


V. Stubbs 




423 


V. Surrey 


572 


577 


V. Thompson 




562 


Geralopulo v. Wieler 




97 


Gerdiug v. Walter 




38 


Gerish v. Chartier 




53 


Gerrish v. Cummiugs 


356 


357 


V. Sweetser 




192 


V. Towne 




287 


Getchell v. Heald 




174 


Geter v. Martin 




119 


Gevers v. Mainwaring 


394 


417 


Geyer v. Irwin 




316 


Gibblehouse v. Strong 


109 


190 


Gibbon v. Coggan 




97 


V. Featherstonhaugh 




38 


Gibbon's ease 


484 


493 


Gibbons v. Powell 




502 


Gibbs V. BjTant 


358, 


427 


V. Gilead 




49 


V. Pike 




584 


Gibney v. Marchay 




197 


Gibney's case 




229 


Gibson u. Hunter 




53 


V. Jeys 




80 


V. McCarty 




362 


V. Peebles 




121 


V. Stevens 




6 


V. Waterhouse 




78 


V. Winter et al. 




173 


Gilbert v. Bulkley 




205 


V. Manchester 




430 


V. Thompson 




532 


Gilchrist v. Bale 102, 


108, 


341 


Gildersleeve v. Caraway 




165 


V. Mahoney 




201 


Giles V. O'Toole 




440 


Gilla;d v. Bates 




244 



Gilleland v. Martin 
Gillet V. Abbott 
V. Sweat 
Gilliam v. State 
Gillies V. Smither 
Gillighan v. Tebbetts 
Gilliland v. Sellers 
Gilmore v. Bowden 
Gilpin V. Vincent 
Gitt V. Watson 
Givens v. Bradley 

V. Filer 
Glascock V. Hayes 
Glassell v. Mason 
Gleadow v. Atkin 



115, 



Gleason v. Mc Vicar 
Glen V. Grover 
Glenn v. Rogers 
Glossup V. Pole 
Glubb V. Edwards 
Glynn v. Bank of England 
Goblet V. Beechy 
Goddard v. Gardner 

V. Ingram 

V. Parr 
Goddard's case 
Godefroy v. Jay 
Godfrey v. Norris 
Goldie V. Gunston 

V. Shuttle worth 
Goldshede v. Swan 
Goldsmith v. Bane 

V. Picard 
Goldstone v. Davidson 
Goltra V. Wolcott 
Gooch V. Bryant 
Goodacre v. Breame 
Goodall V. State 
GoodeU V. Smith 
Goodfellow V. Inslee 
Goodliay v. Hendry 95, 

Goodhue v. Bartlett 
Goodier v. Lake 
Goodinge v. Goodinge 
Goodman v. Harvey 

V. James 

V. The Collector 
Goodrich v. Longley 

V. Weston 
Goodi'ight V. Hicks 

V. Moss 103, 134 
V. Saul 
V. Straphan 
Goodtitle v. Baldwin 

V. Braham 

V. Clayton 

V. Southern 



41 
23 

564 

461 

84 

112 

6 

348 

333, 388 

38 

55 

268 

532 

558 

116, 122, 

149, 153 

60 

260 

562 

556 

572 

117, 121 

288 

239 

112 

458 

24 

508 

572 

207 

186 

285 

581 

54 

513 

254 

564 

395 

162 

96, 281 

560 

392, 422, 

420 

323 

558 

288 

81 a 

506 

480 

281, 286 

558 

55 

, 253, 344 

106 

568 a 

45 

75, 434 

443 

301 



INDEX TO CASES CITED. 



XXXIX 



Goodtitle v. Welford 347, 419, 42!) 

Goodwin ('. Appleton 6 

V. Hubbard 266 

V. AVest _ 311 

Goodwright v. Downshii-e 268 

Gordon v. Ward 480 

Goodyear v. Vosbui'gh 581 

Gore t'. Ehvell 509 

Gorham v. Canton 108 

V. Carroll 385, 452 

Gorrissen v. Perrin 292 

Gorton v. Dyson 518 

17. HadseU 49 

Goslin V. Corry 584 

Gosling V. Birnie 207 

Goss V. Lord Nugent 302 

V. Tracy 168, 572 

i;. Whatlington 116, 147, 149, 

187 

Gosset V. Howard 19, 38 a 

Gough V. Cecil 575 

I'. Gough 57 

V. St. John 54 

Gould V. Barnes 69 

V. Crawford 165 

V. James 331 

V. Jones 578 

V. McCarty 560 

V. Norfolk Lead Co. 277, 416, 

462 

V. Oliver 205 

Goulding v. Clark 540 

Governor u. Bell 498 

V. Daily 426 

V. Gee 420 

V. Jeffreys 498 

V. McAffee 498 

Gower v. Emery 245 

Grace v. Adams 38 a 

Gracie v. Morris 558 

Grafton Bank v. Moore 177 

Gragg V. Fiye 66 

Graham v. Anderson 6 

V. Whitely 540 

Granger v. Warrington 237 

Grant v. Jackson 177, 204, 210 

V. Maddox 292 

V. McLachlin 541 

V. Ridley 320 

V. Thompson 440 

Grantham ik Canaan 39 

Graves v. Joice 535 

V. Key 207, 212 

Gray v. Davis 501 

V. Gardiner 46 

V. Goodrich 108 

V. Harper 280, 295 

V. McLaughlin 102 

V. Pahner 174, 177 



Gray v. Pentland 251 
V. Pingry 531 
Grayson v. Atkinson 272 
Great Falls Co. v. Worcester 145 
Great Northern R. R. Co, v. Har- 
rison 287 
Greaves v. Hunter 581 
Greely v. Smith 532 
Green v. Brown 41 
V. Caulk 436 
V. Chelsea 570 
V. Godfrey 276 
V. Howard 288 
V. Jones 392 
V. New River Co. 394, 527 
V. Pratt 118 
V. Proude 509 
V. Rugely 43, 488 a 
V. Salmon 392 
V. Sutton 356 
V. Waller 5, 480 
Greene v. Clarke 532 
V. Durfee 428 
Greenleaf v. Quincy 112 
Greenough v. Eccles 444 
V. GaskeU 237, 239, 242, 
244 
V. West 385 
Greenwood v. Curtis 83 
V. Lowe 37 
Gregory v. Baugh 103 
V. Dodge 420 
V. Howard 192 
V. Parker 185 
V. Tavernor 437, 466 
V. Thomas 65 
Grellier v. Neale 572 
Grenfell v. Girdleston 39 
Gresley v. Mouseley 38 a 
Greville v. Chapman 440 
Grey v. Washbiu-n 40 
V. Young 102, 430 
Grierson v. Eyi-e 4 
Griffin v. Brown 342, 395, 539 
V. Montgomery R. R. Co. 113 
Griffin's case 220 
Griffing v. Harris 385 
Griffith V. Davies 245 
V. Williams 578 
Griffiths V. Hardenburg 297 
V. WiUiams 27, 186 
Griffits V. Ivery . 580 
Grigg's case 339, 340 
Grimes v. Kimball 558 
Grimwood v. Barrett 60 
Griswold v. Pitcairu 4 
Grobb V. Cushman 5 
Grote V. Grote 47 
Guernsey v. Carver 532 



xl 



INDEX TO CASES CITED. 



Guidon v. Robson 




207 


Hall V. Houghton 




443 


Guild V. Lee 


179 


537 


V. Manchester 




509 


Guild's case 217, 219, 221 


222 


,223 


V. Odber 




546 


Guinness v. Carroll 




546 


V. Phelps 




569 


Gulick V. Loden 




33 


V. Steamboat Co. 




426 


Gully V. Grubbs 




26 


V. White 




208 


Gunnison v. Gunnison 




310 


V. Williams 


502 


,548 


Gunter v. Watson 




435 


Hallet V. Mears 




310 


Gurney v. Langlands 




580 


Hallett V. Cousens 




463 


Gurrw. Rutton 




101 


Halliday v. Martinett 




116 


Gutterids^e v. Smith 




205 


Haly V. Lane 




207 


Guy V. Hall 




385 


Ham V. Ham 




5, 25 


V. Sharp 


287 


,291 


Hamblin's Succession 




550 


Gwinnett v. Phillips 


60, 66 


Hamer v. Sowerby 




559 


Gyles V. HiU 




508 


Hamilton v. Cutts 


180 


394 








V. Desmoines R. R. 


440 








V. Marsden 


572 


575 


H. 






V. Minor 




145 








V. People 440, 451 


461 


Habershon v. Troby 




249 


V. Williams 


167 


,572 


Hacker v. Young 




484 


Hammatt v. Emerson 




113 


Hacket v. Callender 197, 


199 


207 


Hammick v. Bronson 




107 


V. Martin 




190 


Hammon v. Huntley 




176 


Hackett v. King 




108 


Hammond v. Steward 




314 


Hackley v. Patrick 




112 


Hammond's case 578, 


580 


581 


Hackman v. Fernie 


73^ 76 


Hampshu-e v. Pierce 




291 


Haddow v. Parry 


116 


,147 


Hampton v. McConneU 




504 


Haddrick v. Raine 




49 


Hamson v. Barton 




280 


Hadduck v. Wilmarth 




385 


Hanbui-y v. Ella 




73 


Hadjo V. Gooden 




469 


Hancock v. Barrett 




548 


Hadley v. Carter 




108 


V. Welsh 




531 


V. Green 




532 


Handley v. Edwards 




402 


Hadrick v. Heslop 




357 


Hannaford v. Hunn 




532 


Haffelfinger v. Shutz 




564 


Hannay v. Stewart 




113 


Haganian v. Case 




118 


Hanover (K. of) v. Wheatley 


467, 


Hagedoorn v. AUnutt 




310 






554 


Hagedoru v. Reid 




116 


Hanover R. R. Co. v. Cayle 




108 


Haig V. Newton 




437 


Hansard v. Robinson 




558 


Ilaigh V. Belcher 


52 


449 


Hanson v. Eustace 




37 


V. Brooks 




485 


V. Parker 




180 


Haile v. Palmer 


485 


493 


V. Shackleton 




5 


Haines i;. Dennett 




385 


V. Stetson 




281 


Haire v. Wilson 




18 


Harbold v. Kuster 




294 


Hale V. Ross 




489 


Hard v. Brown 




101 


V. Russ 


567, 


568 


Harden v. Gordon 




212 


V. Smith 




398 


Ilardenburg v. Cockroft 




440 


Hale's Ex'rs v. Ard's Ex'rs 




117 


Harding v. Carter 




208 


Haley v. Godfrey 




427 


V. Greening 




36 


Halifax's case 




40 


V. Hale 




532 


Hall V. BaU 


84 


582 


V. Mott 




385 


V. Baylies 




392 


Hardman v. Wilcock 




207 


V. Cazeuove 




285 


Hardy v. Merrill 




440 


r. Cecil 


395 


401 


V. The State 




49 


V. Fisher 




301 


Hare v. Munn 




76 


V. Gettings 




145 


Harger v. Edmonds 




440 


V, Glidden 




117 


Hargrave v. Everard 




38 a 


V. Hale 




391 


V. Hargrave 103, 


107 


166 


V. Hill 




185 


Harlett v. Hewlett 




37 


V. Hoddesdon 




552 


Harman v. Lesbrey 


391 


401 



INDEX TO CASES CITED. 



3di 



Ilarman's case 
Harmer v. Davis 
Harmon v. Arthur 
Harness v. Thompson 
Harnett v. Johnson 
Harper v. Bmrow 
V. Gilbert 
Haniman v. Stowe 
Harrington i^. Fry 

V. Lincoln 192, M9,469 
Harris v. Forman 2Si a 
V. Harris 215 
V. Holmes 51 a 
V. Johnston 305 
V. Mantle 52 
V. Rayner 58 
V. Rickett 285 
V. Tippett 52, 423, 449, 459 
V. Whitcomb 86 
V. Wilson 177, 423, 425, 449 
Harris's case 227 
Harrisburg Bank v. Foster 385 
Harrison v. Barnby 61 
V. Barton 282 
V. Blades 147, 572 
V. Courtauld 421 
V. Creswick 528 
V. Gordon 449 
V. Middleton 437 
V. Moore 96 
V. Rowan 434, 445, 447 
V. RusseU 54 
V. South 35 
V. VaUance 180, 190 
narrison's case 79 
Hart V. Deamer 556 
V. Hammett 282 
V. Hart 38 a 
r. Xewman 196, 209 
V. Powell 108 
V. AVilliams 116 
V. Yunt 84 
Hart's case 408 
Hartford v. Palmer 365 
Hartford Bank v. Hart 332 
Hartford Bridge Co. v. Granger 192 
Hartford Prot. Ins. Co. v. Har- 
mer 441 
Hartley v. Brooks 117 
V. Manson 568 a 
V. Willdnson 283 
Hartman v. Keystone Ins. Co. 441 
Hartness v. Thompson 197 
HartweU v. Root 40, 80 
Harvey v. Alexander 26 
V. Broad 5 
V. Coffin 392 
V. Grabham 302 
V. Mitchell 560 



225 


Harvey v. Richards 




528 


207 


V. Thomas 




84 


427 


V. Thorpe 




84,86 


356 


V. Towers 




78 


81 


Harvey's case 




231 


164 


Harwood v. Goodright 




37 


477 


V. Keys 




180 


108 


V. Mulry 




lis 


577 


V. Sims 


134, 


135, 138 



Hasbrouck i;. Baker 96 

V. Vandervort 335 
Haskill V. The Commonwealth 79 

Haskins v. Warren 81 a 

Hassard v. Municipality 5 
Hastings v. Blue HUl Tm-npike 

Corporation 484 

Hatch V. Dennis 190 

V. Hatch 568 

Hatfield v. Jameson 6 

V. Thorp 341 

Hathaway v. Clark 20 

V. HaskeU 176 

Hathorn v. King 440 

Hatton V. Robinson 238 

Hauberger v. Root 176 

Haughey v. Strickler 51 a 

Haven v. Brown 113, 437 

Havis V. Barkley 387 

Hawes v. Hatch 568 

V. N. E. Ins. Co. 441 

V. Watson 207 

Hawk V. Freund 201 

Hawkesworth v. Showier 357, 407 

Hawkins v. Brown 322 

V. Finlayson 394 

V. Grimes 581 

V. Howard 246 

v. Lascomb 179 

r. Ware 89 

Hawks V. Baker 371 

V. Charlemont 52 

V. Kennebec 6 

Haworth v. Bostock 39 

Haworth's case 225 

Hayden v. Denslow 266 

V. Inhab'ts of Madison 197 

Haydon's case 293 

Hayes v. Kelley 197 

V. Morse 122 

V. Seaver 187 

Hayne i'. Maltby 25 

HajTies V. Rqwe 323 

V. Rutter 108 

V. Yomig 301 

Hays V. Richardson 422 

Hayslep v. Gymer 199 

Hayward v. Bath 498 

Hayward Rubber Co. v. Duncklee 189 

Ha/ard v. Loring 305 



xlii 



INDEX TO CASES CITED. 



& Provi- 



deuce Raili-oad 




462 


Hazeldine v. Grove 




49 


Hazelton v. Union Bank 




581 


Hazen v. Boston & Maine R 


R. 


80, 
285 


Head v. McDonald 




539 


V. Shaver 




172 


Heald v. Tiling 




440 


Healey v. Thatcher 




192 


Ilealy u. Thome 




45 


Heane v. Rogers 


204 


207 


Heard v. Wadhani 




303 


Hearn v. Tomlin 




25 


Heath v. HaU 




408 


V. West 




55 


Heaton v. Findlay 




242 


Heckert v. Fegely 




358 


V. Haine 




569 


Hedge v. Clapp 




462 


Heely v. Barnes 




421 


Heermance v. Vernoy 




3!(S 


Helmsley v. Loader 




196 


Hemenway v. Smith 




239 


Hemming v. English 




429 


V. Parry 




73 


Hempstead v. Reed 


488 


489 


Henderson v. Anderson 




385 


V. Cargill 




107 


V. Henderson 




546 


V. Jones 




469 


V. Kenner 




532 


V. Wild 


172 


174 


Hendrick v. Crowley 




304 


Hendrickson v. The People 




225 


Henfrey v. Bromley 




506 


Henisler v. Freedman 




248 


Henkin v. Gerss 




253 


Henman v. Dickinson 


342 


564 


V. Lester 


96 


449 


Hennell v. Lyon 


507 


512 


Hemy v. Adey 




514 


V. Bishop 




569 


V. Brown 




69 


V. Cleland 




69 


V. Lee 


484 


560 


V. Leigh 


496 


560 


V. Risk 




280 


Henshaw r. Davis 




118 


Henthorne i'. Doe 




21 


Hepburn v. Auld 




46 


Herbert v. Ashburner 




473 


V. Tuckall 




110 


Hercules, The 




495 


Herman v. Drijikwater 




348 


Herrick v. Malin 




564 


V. Noble 




281 


Herring v. Boston L-on Co. 


288 


, 297 


V. Clobei-y 




240 



Herring t". Levy 115,117 

Herschfield i'. Clarke 559 

Hervey v. Hervey 107 

Heward v. Shipley 384, 413 

Hewett V. Dement 284 

V. Piggott 198 

Hewitt V. Prime 248 

Hewlett V. Cock 142, 144 

Heylings v. Hastings 112 

Hevwood V. Reed 101, 190, 469 

Hibbert v. Knight 241 
Hibblewhite v. McMorine 568, 568 a 

Hibsham v. Dulleban 550 

Hicks V. Person 581 

Higdoii V. Thomas 26 

Higgins V. Dellinger 197 

Higgs V. Dixon 569 

Higiiam v. Ridgway 116, 147, 149, 

150, 151 

Highfield v. Peake 507, 516 

Highland Turnp. Co. v. McKean 493 



Higley v. Bidwell 
Hildreth v. Maiiin 
HiU V. Barge 

V. Buckminster 

V. Crosby 

V. Great Western Railway 

V. Grigsby 

V. Manchester & Salford 
Waterworks 

V. North 

1-. Lafayette Ins. Co. 

V. Packard 
Hill's case 
Hilliard v. Jennings 
Hills V. Barnes 

V. London Gas Co. 
Hilt V. Campbell 
Hilts V. Colvin 
Hinde v. Vattier 
Hinkle v. Wanzer 
Hinman v. Brees 
Hinman's case 
Hipes IK Cochi'an 
Hiscocks V. Hiscocks 
Hitchcock V. Tyson 
Hix I'. Whittemore 
Hizer v. State 
Hoare v. Croyton 
V. Graham 
V. Silverlock 
Ilobart V. Bartlett 
Hobbs V. Lowell 
V. Parker 
Hocking v. Cooke 
Ilockless V. ]\litchell 
Hockley v. Lamb 
llodempyl v. Vingerhoed 
Hodgdon v. Wight 



145 
199 
272 
304 

17 
559 

43 

26 

101 

441 

488, 508 

65 

392 

564 

288 

58, 66 

84, 375 

21, 490 

260 

521 

227 

6 

289, 291 

205 

42 

6 

150, 181 

281 

5 

422 

207 

528 

5, 280 

427 

405 

112 

88 



INDEX TO CASES CITED. 



xliii 



Hodge's case 


34 


Hodges V. Bennett 


259 


V. Holden 


75, 76 


V. Horsfall 


288 


Hodgkinson v. Fletcher 


185 


V. Willis 


512 


Hodgson V. ]\Ierest 


179 


Hodnett v. Forman 


572 


Hodsdon V. Wilkins 


395, 402 


Hodsou V. Marshall 


390 


I'. Sharpe 


207 


Hoe V. Melthorpe 


518 


Hoffman v. Smith 


248 


Hoge V. Fisher 


440 


Hoggett V. Exley 


76 


Hoibrook v. Gay 


118 


V. Jackson 


93 


V. JMcBride 


74 


V. Mix 


442 


V. TuTell 


265 


Holcomb V. Cornish 


513 


V. Holcomb 


365, 366 


Holcombe r. Hewson 


52 


Holden V. Hearn 


392 



Holdiiig V. EUiott 196, 282 a, 288 
V. Pigott 294 
Holdsworth v. Mayor of Dart- 
mouth 444, 467 
HoUaday v. Littlepage 116, 120, 147 
Holland v. Cruft 529 
V. Reves 466 
Hollaway v. Raikes 147 
HoUenback v. Fleming 569, 569 a 
HoUenbeck v. Shutts 281 
HoUingham i-. Head 52, 53 
Holman v. Burrow 6 
V. KimbaU 239 
V. King 486 
Holme V. Greene 174 
Holmes v. Anderson 449 



V. Baddeley 
V. Broughton 
V. Doane 


240, £ 


40 a 

43 

303 


V. Love 




78 


V. Pontin 




572 


V. Remsen 




512 


Holsten v. Jumpson 
Holt V. Miers 


529, 


287 
562 


V. Squire 


186, 


194 


Homan v. Thompson 
Home V. Lord Bentinck 


250, 


75 
251 


V. Mackenzie 


436, 


438 


Homer v. Brown 




530 



V. WaUis 568, 572, 581 

Hone V. Mut. Safety Ins. Co. 292 
HonejT\-ood v. Peacock 572 

Hood V. Reeve 182 

Hook V. Freund 201 

Hope V. Evans 200 



Hope V. Harman 568 a 

Hopewell v. De Pinna 41 

Hopkins v. Banks 112 

V. De Graff enreid 575 

V. Megquire 577 

V. Neal 347 

V. School District 288 

Horan v. Weiler 37 

Hordiman v. Herbert 19 

Horford v. Wilson 584 

Home V. Smith 319 

Home Tooke's case 198 

Horry District v. Hanion 564 

Hoskins v. Miller 519 

Hotchkiss V. Ger. Ins. Co. 469 

V. Lyon 187 

Hotham v. East India Co. 304 

Houghton V. Koenig 97 

Houlditch V. Donegal 546 

Houliston v. Smyth 102 

Hovey v. The Mill-Dam Foundiy 333 

Hoviil V. Stephenson 167, 386, 418, 

435, 572 

How V. HaU 89 

Howard v. Braithwaite 384 

V. Canfield 437 

V. Chadbourne 392, 428 

V. City Fire Ins. Co. 449 

V. Mitchell 531 

V. OdeH 284 

V. Peete 64 

V. Smith 96, 203 

V. Tucker 208 

Howe V. Howe 388 

V. Peabody 565 

V. Walker 281 

HoweU V. Lock 421 

V. Richards 69 

V. Thomas 73 

Howland v. Conway 462 

V. Lenox 310 

V. Sheriff, &c. 394, 437 

V. ^\\\\Qiis 394, 437 

Hoxie V. Wright 549 

Hoy V. Morris 239 

Hoyle V. Cornwallis 5 

Hoyt V. Hammekin 323 

t'. Wildfire 389 

Hubbard v. Hubbard 77 

V. Knous 205 

V. Russell 84 

Hubbert v. Borden 281 

Hubbly V. Brown 891 , 399 

Hubly V. Vanhorne 580 

Hudson V. Browne 81 

V. Guestier 541 

17. Harrison 197 

V. Revett 568 a 

Hudson Co. v. State 20 



xliv 



INDEX TO CASES CITED. 



Iliiet V. Lemesurier 
Huff V. Bennett 
Hugh's case 
Hughes V. Biddulph 
V. Blake 
V. Buckland 
V. Budd 
V. Cornelius 
V. Hampton 
V. Rogers 
Huidekoper v. Cotton 
Hull V. Blake 629, 

Humble v. Hunter 

V. Mitchell 
Hume V. Scott 
Humphrey v. Burnside 

V. Humphrey 
Humphreys v. Budd 

V. Guillow 
V. Miller 
Hunneman v. Fire District 
Hunt V. Adams 281, 565, 

V. Brigham 
V. Hoit 
V. Livermore 
V. Lyle 
V. Massey 
V. Roglance 
Hunter (The) 31 

Hunter v. Caldwell 
V. King 
V. Leashley 
Huntingford v. Massey 
Huntington v. American Bank 

V. Finch 
Hurd V. IMorijig 
Hurst V. Beach 
V. Jones 
Hurst's case 316, 

Hutcheon v. Mannington 
Hutchius V. Adams 

V. The State 
Hutchinson v. Bowker 49, 277, 

V. Sinclair 
Hutton V. Warren 
Hyckman v. Shotbolt 
Hyde v. Middlesex Co. 
Hyltou V. Brown 



493 


Imlay v. Rogers 


553 


166 


Imperial Gas Co. v. Clarke 


474 


82 


Imrie v. Castrique 


546 


204 


Ing V. Brown 


260 


530 


Inge V. Murphy 


488, 489 


49 


Ingraham v. Bockins 


117 


562 


V. Hutchinson 


17 


5 


V. State 


6 


118 


Ingram v. Dada 


426 


580 


V. Lee 


89 


252 


Innes v. Campbell 


41 


542 


Innman v. Foster 


55 


281 


In re Richardson 


19 


267 


Sandilands 


38 a 


461 


Wellman 


19 


5 


Ins. Co. V. Woodruff 


113 


54 


Inslee v. Prall 


118 


6 


Ireland v. Powell 


138 


564 


V. Stiff 


463 


402 


Irish Soc. v. Derry 


584 


275 


Irvine v. Stone 


66 


5G7 


Irving V. Living 


575 


174 


Irwin V. Reed 


163 


301 


V. Shumaker 


356 


283 


Irwin's case 


227 


505 


Isack V. Clarke 


144 


121 


Isbell V. N. Y. & N. Haven R. R. 


209 


Co. 


40 


,37 


Isham V. Gibbons 


514 a 


49 


Isler V. Dewey. 


469 


404 


Israel v. Benjamin 


205 


416 


V. Clark 


210 


53 


Ivat V. Finch 


147, 189 


205 


Ives V. Niles 


118 


564 


Ivey V. Young 


73 



245 
296 
104 
318 
5 

61 
310 
280 

26 
294 

09 
109 
559 



I. 

lasigi V. Brown 
Icehour v. Martin 
Ide V. Stanton 
Ilderton v. Atkinson 
111. Cen. R. R. Co. V. 
Illinois Lis. Co. v. 
Co. 



477, 559 

319 

208 

391,416 

Sutton 102 

Marseilles 

430 



J. 

Jack V. Dougherty 
Jackson v. Bailey 
V. Bard 
V. Benson 
V. Blanshan 
V. Boneham 
V. Brooks 
V. Browner 
V. Burtis 
V. Burton 
V. Chase 
V. Christman 
V. Cooley 
V. Davis 
V. Dobbin 
t'. Fairbank 
V. French 
V. Frier 
r. Galloway 
V. Gould 



26 

164, 105 

109 

390 

21, 144, 570 

484 

389, 578 
103 

237, 241 
572 
265 

437, 570 

104 

21 

207 

112, 174 
239 
349 
427 
568 



INDEX TO CASES CITED. 



xlv 



Jacksoii v. Gridley 
r. Hesketh 
V. Hogarth 
V. Jacksoii 
V. Jones 
V. King 
V. Kingsley 
V. Kniffen 
V. Lamb 



367, 369 
74, 75, 76 
389 
421 
559 
484 
571 
156 
144 



r. LaiTOway 142, 144, 570 

V. Lawson 164 

V. Leek ■ 443 

V. Le Grange 575 
V. Luquere 21, 142, 144 

V. Malin 566 

V. Mann 319 

17, Marsh 301 

V. JMatsdorf 24 

V. McCaU 45 

V. McVey 241 

V. Meyers 284 

V. Miller 498 

V. Mills 24 

V. Murray 46 

V. Osborne 564 

V. Pesked 19 
V. Phillips 581, 581 a 

V. Pixley 207 

V. Pratt 426 

V. Reynolds 207 

V. Robinson 519 

V. Rumsey 167, 418 

V. RusseU 104 

V. Scissam 207 

V. Seager 319 

V. Smith 207 

V. Spear 207 

V. Sprague 301 

V. Thomason 444, 462 

V. Vail 84, 575 

V. Yanderheyden 24 

V. Van Dusen 272 

V. Varick 447 

V. Waldron 84, 575 

V. Williamson 252 a 

V. Winchester 164 

V. Wood 539 

V. Wooley 174 

f, Wright 24 
Jackson d. ]\Ici)onald v. McCall 145 

Jackson's case 259 
Jacob r. Lindsay 90, 436, 439 

V. United States 83 

Jacobs V. Humphreys 180 

V. Layboum 421 

V. Whitcomb 102 

Jacobson v. Fountain 331, 428 

Jacock V. Gilliam 474, 484 

James v. Biou 37, 196 



James v. Brawn 


92 


V. Hackley 


176 


V. Platfield 


347 


V. Phelps 


49 


V. Salter 


74 


V. Spaulding 


117 


V. Trollop 


144 


V. Walruth 


69 


V. "SA'harton 


120 


Jameson v. Drinkald 


440 


Jansen v. Ostrander 


69 


J'Ansen v. Stuart 


55 


Janvrin v. Fogg 


462 


V. Scammon 


451 


Jarboe v. Kepler 


462 


Jardine v. Sheridan 


192, 239 


Jarrett v. Leonard 


181 


Jasper v. Porter 


6 


Jay V. Carthage 


37 


Jeacock v. Faulkner 


288 


Jeans v. Fridenburg 


242 


Jeens v. Wheedon 


227, 582 


Jeffers v. Radcliife 


550 


Jefferson Ins. Co. v. Cotheal 


441 


Jeffreys v. Harris 


54 


V. Walton 


304 


Jelf V. Oriel 


73 


Jenkins v. Davis 


133 


V. Eldredge 


296 o 


V. Phillips 


73 


Jenks's case 


65 



Jenuer v. Joliffe 86, 96, 203, 521 

Jenney v. Rodman 207 

Jennings v. Whitaker 204 

Jermain v. Denniston 190 

Jessup V. Cook 164 

Jevans v. Han-idge 349 

Jewell V. JeweU 103, 107, 108 

Jewett V. Adams 394, 420 

V. Torry 207 

Joannes v. Bennett 37 

John V. Curry 73 

Johnson v. Beardslee 174 

V. Blackman 190, 353 

V. Brailsford 273 

V. Breedlove 118 

V. Browning 352 

V. Cunningham 409 

V. Dalton _ -^^ 

V. Daverne 255, 577 

V. D. of Llarlborough 564 

V. Durant 219 

V. Hacker 49 d 

V. Howard 103 

V. Johnson 248, 272, 30.') 

V. Knight 167 

V. Lawson 103 

V. Lyford 582 

V. McGruder 2G0 



xlvi 



ESTDEX TO CASES CITED. 



Johnson v. Powers 165 

V. Runnels 505 

r. Sherwin 110 

V. State 158 

V. Thoroughgood 58 

V. Ward _ 114, 481 

Johnston v. Caulkins 54 

V. Cottingham 27, 532 

I'. Haines 276 

V. Jones , ' 484 

r. Todd 103, 462 

Johnstone's case 65 

Jolley V. Taylor 82, 89 

i\ Young 49 

Jones V. Barclay 304 

V. Brinkley 572 

V. Brooke 391, 401 

V. Carrington 189 

V. Church 190 

V. De Kay 118 

V. Edwards 562 

V. Flint 179, 271 

V. FoxaU 192 

V. Gale 6 

V. Georgia 379 

V. Herbert 174 

V. Hoar 205 

V. Jones 168 

V. Kennedy 74 

V. Lake 272 

V. Lanier 452 

V. Long 117 

V. Mason 374, 572 

V. McNiel 533 

V. Moore 112 

V. Morrell 197, 215 

V. JNIuisbach 40 

V. Newman 291 

V. Overstreet 5 

V. Perry 101 

V. Phelps 569 

V. Pitcher 494 

V. Pugh 240 
V. Randall 482, 491, 508, 511 

V. Sasser 26 

V. Stevens 55 

r. Stroud 438 

V. Tarleton 94 

V. The State 209, 303 

V. TuberviUe 178 

V. Tucker 49, 440 

V. Vanzant 51 a 

V. Ward 2G, 166 

V. White 537 

V. Whittier 190 

V. Williams 53 a 

V. Wood 165 

Jones's case 225 

Jorau V. Ferrand 448 



Jordaine v. Lashbroke 
Jordan v. Fenno 

V. Hubbard 
V. Lewis 
V. Osgood 
t;. Stewart 
V. Wilkins 
Jordan's case 
Jory V. Orchard 
Joseph V. Bigelow 
Jourdain v. Sherman 
Joyce V. Maine Ins. Co. 
Judd V. Gibbs 
Judge, &c. V. Briggs 
Judice V. Chretien 
Judson V. Blanchard 
Jumpertz v. People 

K 



385 

260 
185 
254 a, 471 
53 
564 
563 

102, 108 
561 
304 
418 
441 

171, 195 

503, 513, 518 

485 

349 

576 



Kaines v. Knightley 




281 


Kane v. Johnston 




79 


Kay V. Brookman 




575 


Kaye v. Waghorne 




301 


Kaywood v. Barnett 




103 


Kean v. Price 


489, 


505 


Keane v. Smallbone 


508 a 


Kearney v. Farell 




102 


Keating v. Rice 




304 


Keeling v. Ball 


84 


572 


Keene i'. Deardon 




46 


Keightly v. Birch 




394 


Keith V. Kibbe 




118 


V. Lathrop 


576 


577 


V. Wilson 




432 


Kell V. jSTainby 




207 


Kellenberger v. Sturtevani 


527 a 


Kelley v. People 


37 


199 


V. Powlet 




288 


V. Small 


185 


341 


Kello V. Maget 




573 


Kellogg V. Smith 




301 


Kellyy. INIcGuire 




103 


Kelsey v. Bush 




201 


V. llanmer 558, 571 


574 


Kelway v. Kelway 




237 


Kemble v. Lull 




294 


K em merer v. Edelman 




434 


Kemp V. King 




560 


Kempland u/Macaulay 




181 


Kendall v. Powers 




513 


Kendrick v. State 


164 


, 165 


Kennedy v. Doyle 




115 


V. Erie, &c. 


Plank 




Road Co. 




281 


V. Niles 




356 


Kennet v. GreenwoUera 




392 


Kenney r. Jones 




46 



INDEX TO CISES CITED. 



xlvii 



Kensington r. Tnglis 436, 437 

Kent V. Garvin 117 

V. Lincoln 
Kern v. South St. Louis ]Mut. 

Fire Lis. Co. 
Kerr v. Love 
Kerr's case 

Kerrison v. Coatsworth 

Kerwin, ex parte 

Ketchingham v. State 

Key V. Dent 

V. Shaw 

Kidder v. Blaisdell 

Cockburn 

Sanders 

Bennett 

. Herr 

Huntington 

i\lorrel] 

Thompson 

Kimmel 

Howe 

r. PurceU 

King V. Badeley 

V. Chase 

i\ Donahoe 

V. Hoare 

V. Little 

V. Lowry 

V. Paddock 

V. Robinson 

V. Waring 

King (The) v. Mashiter 

Kingham v. Robins 

Kingston v. Lesley 

Kingston (Mayor of) i\ Horner 20, 45 

Kingston's (Duchess of) case 19, 248, 

523, 581, 541 

Kinleside v. Harrison 440 

Kinnersley v. Wm. Orpe 484, 523, 535 

Kinney v. Berran 322, 323 

V. Farnsworth 145, 207 

V. Flvnn 282, 577, 581 



Kidney v. 
Kieran v. 
Kilburn v. 
Kilheffer r 
Kimball v. 



Kimmel v. 
Kincaid v. 



102 



441 

118 

229 

396 

568 a 

462 

523, 527 

101, 197 

6 

105 

207 

41, 108 

531 

173 

558 

360 

461 

37 

356 

288 

527, 528, 532 

581 

533 

20, 21 

356 

41 

66 

55 

280 

205 

493 



Kinsley i'. Robinson 
Kip V. Brigham 
Kirby v. Hickson 

V. Sisson 
Kirk V. Eddowes 

V. ^lowry 
Kirkland ;;. Smith 
Kirkpatrick v. Stingley 
Kirwan v. Cockburn 
Kissam v. Forrest 
Kitchen v. Campbell 

V. Tyson 
Klein v. Landman 
Kline t'. Baker 
Knapp V. Maltby 
Knapp's case 



385 

180, 539 

6 

558 

296 

166 

506 

539 n 

479 

445 

531, 533 

118 

35 

65 

567, 568 a 

219, 222, 231 



Knight V. Clements 564 

V. Dauler 509 

V. Howe 461 

V. Marquis of "Waterford 150, 

561 

V. Martin 571 

V. Packard 385 

Knott V. Smith 319 

Knowles v. People 461 

Knox r. Jenks 46 

V. Silloway 571 

V. Waldoborough 529 

Koch V. HoweU 117 

Kohn V. Marsh 27, 206 

Kraft V. Wickey 544 

Kreise v. Neason 96 

Krider v. Lafferty 279 

Kuhtman v. Brown 323 

Km-tz V. Hibner 290 



L. 



La Caygas v. Larionda 


479 


Lacon v. Higgins 


75,76 


Lacy V. McNeal 


112 


Ladd V. Blunt 


501 


Lade v. Holford 


46 


Lady Lawley's case 


343 


Laing v. Barclay 


246 


Lainson i'. Tremere 


22 


Lake v. Aubui-n 


420 


V. King 


6 


V. IMuniford 


51a 


Lamb v. Hart 


118 


V. Lamb 


289 


Lamb's case 


90, 215, 228 


Lambert v. Hale 


81 


Lambeth v. Vawter 


112 


Lamey v. Bishop 


73 


Lampon v. Corke 


26, 212 


Lamprey v. Nudd 


532 


Lampton v. Haggard 


5 


Lanauze v. Palmer 


87 


Lancaster v. Lane 


513 


V. Whitehill 


581 


Lancum v. LoveU 


139 


Lander v. Seaver 


54 


Landsberger v. Gorham 


239 


Lane i'. Chandler 


172 


V. Cole 


319 


V. Crombie 


78 


V. Harrison 


530 


Lane's case 


6 


Lang V. Gale 


49 


V. Phillips 


19 


V. Raine 


572 


Langdon v. Goddard 


550 


V. Langdon 


279, 305 



xlviii 



INDEX TO CASES CITED. 



Langdon v. Young 
Langhorn v. AUnutt 
Langley v. Fisher 

V. Lord Oxford 
Lansdowne v. Lansdowne 

Lansing v. McKillip 68 
Lansingburg (Bank of) v. Crary 271 

Lapham v. Whipple 284 

Larbalestier v. Clark 391, 398 

Lamed v. Buffington 55 

Larry v. Sherburne 199 

Latham v. Kennistou 177, 395 

Lathrop v. Blake 297 

V. Muzzy 397 

V. Stuart 6, 19 

Latkow V. Earner 556 

Lattimore t'. Harsen 303 
Laughlin v. Ch. & N. W. R. R. 

Co. 48 

V. The Stat© 102 

Law V. Law 322 

V. Merrills 200 

V. Scott 251 

Lawdon v. Lawdon 435 

Lawes v. Reed 436 

Lawless v. Queale 96 

Lawrence v. Barker 443, 449 

V. CampbeU 240 

V. Dole 302 

V. Houghton 371 

V. Hunt 531 

V. Ins. Co. 559 

V. Minturn 38 

V. Thatcher 113 

Lawson V. State 216 

V. Sweeney 37 

Lawton v. Chase 53 

V. Kittredge 260 

Laxton v. Reynolds 559 

Layer's case 90, 228, 461 

Lea V. Polk County Copper Co. 40 

Leach v. Armitage 75 

V. Simpson 161, 227 

V. Thomas 390 

Leader v. Barry 107 

Leake v. INIarquis of Westmeath 511 

Learned v. Bryant 207 

Leathe v. Bullard 302 

Leathes v. Newith 138 

LeBaron v. Crombie 163 

Lechmere v. Fletcher 539 a 

Ledford v. Vandyke 565 

Ledgard v. Thompson 569 a 

Lee V. Alexander 566 

V. BirreU 248 

V. Dick 281 

V. Gansell 372, 375 

V. Howard, &c. Co. 281 

V. Kilbum 101 



488 a 


Lee V. Meecock 


508 


113 


V. Pain 


261 


341 


Lee's case 


449, 461 


186 


Leeds v. Cook 


37, 561 


288 


V. Lancashire 


283 



V. Marine Insurance Co. of 

Alexandria , 178 

Lees V. Hoffstadt 81 

V. Smith 430 

Lefavor v. Yandes 112 

Lefebure v. Worden 117 

Le Fevi-e v. Le Fevre 302 

Leffers v. De Mott 395 

Leggatt V. Cooper 205 

V. ToUervey 254 a, 471 

Legge V. Boyd 73 

V. Edwards . 179 

Leggett V. Boyd 430 

Legh V. Legh 173 

Lehan v. Good 632 

Leicester (E. of) v. "Walter 55 

Leideman v. Schultz 280 

Leigh V. Leigh 288 

Leighton v. Perkins 428 

Leke's case 51, 56, 60 

Lemaine v. Stanley 272 

Lemere v. Elliot 38 

Lench v. Lench 200, 214, 550 

Leonard v. Allen 55, 440 

V. Leonard 550 

V. Morrill 301 

V. Vredenburg 268 

Leport V. Todd 41 

Lesher v. Levan 572 

Lesley v. Hudson River R. R. 

Co. 113 

Lester v. Jenkins 521 

Lethulier's case 292 

Levers v. Van Buskirk 244 

Levi V. Milne 49 

Levy V. Cadet 112 

V. Essex 400 

V. Merrill 205 

V. Pope 245 

V. State 5,481 

Lewes' Trusts 41 

Lewis V. Brewster 304 

V. Clerges 164 

V. Gray 284 a 

V. Hogdon 420, 461 

V. Kramer 116 

V. Marshall 484 

V. Payn 566, 568 

V. Peake 397 

V. Sapio 577 

Ley V. Ballard 572 

Leylield's (Dr.) case 568 

Lichtenhein v. Boston & P. R. R. 

Co. 292 



INDEX TO CASES CITED. 



xlix 



Lightfoot V. Cameron 316 

Lightnor v. Wike 163, 437 

Like V. Howe 196, 204, 207 

Lilly V. Kitzmiller 429 

Lincoln v. Battelle 488 

Lindauer v. Cumrainga 284 

Lindenberger v. Beal 40 

Lindley v. Lacey 284 

Lindsay v. Williams 6 

Lindsey v. Attorney-General 6 

Linfield v. Old Col. R. R. Corp. 323 

Lingan v. Henderson 26 

Linn v. Buckingham 569 

Linscott V. Trask 34 

Linsley v. Lovely 305, 445 

Linton v. Gilliam 479 

Lipscombe v. Holmes 195, 205 

Lister v. Ferryman 49 

V. Priestley 195 

V. Smith 289 

Little V. Keon 386 

V. Larrabee 252 a 

V. Libby 109 

V. Thompson 78 

Little's case 108 

Littlefield v. Portland 398 

V. Rice 333 

V. Story 173 

Littlehale v. Dix 323 

Littler v. Holland 302 

Livermore v. Aldrich 26, 296 

V. Herschell 532 

Livett r. Wilson 46 

Livingston v. Bishop 533 

V. Cox 166 

V. Kingstead 365 

V. Livingston 46 

V. Tenbroeck 293 

Llewellyn v. Winck worth 53 

Lloyd V. Lynch 212 

V. Passingham 460 

V. Sandiland 38 

V. SpiUett 266 

V. Willan 27, 184 

V. Williams 358 

Lobb V. Stanley 285 

Lochlibo (The) 443, 444 

Lock V. Winston 527 

Locke V. Norborne 536 

Lockhart v. White 35 

Lockhart's case 231 

liOckwood I'. Lockwood 440 b 

V. Smith 176 

r. Sturdevant 24 

Lodge V. Phipher 580 

V. Pritchard 119 

Logan V. The State 158 

Lohman v. The People 455 

Lombardo v. Ferguson 561 

VOL. I. 



London v. Lynn 493 

Lonergan f. The Royal Ex. Ass. 310 

V. Whitehead 118 

Long V. Baillie 167 

I'. Barrett 53 

V. Colton 145 

V. Davis 163 

V. Hitchcock 463 

V. Lamkin 450 

Long's case 217, 220 

Longenecker v. Hyde 116, 120, 

187 
Look u. Bradley 331,405 
Loomis V. Bedell 571 
V. Green 37, 532 
V. Jackson 30 1 
V. Loomis 112 
V. W^adhams 96 a, 171, 203 
Lopes r. De Tastet 58, 64 
Lord V. Bigelow 23 
V. Colvin 437 
V. ]\[oore 323 
Lord Feversham v. Emerson 22 
Lord Gosford v. Robb 96 
Lord Milton v. Edgeworth 302 
Lord Talbot v. Cusack 438 
Loring v. Xorton 301 
V. Steineman 41 
Loring et al. v. Brackett 174 
Lorton, Viscount, v. E. of Kings- 
ton 551 
Losse V. Losse 126 
Lothrop V. Blake 489 
Loud V. Merrill 40 
Louisiana State Bank v. Martin 416 
Louisiana St. Lottery v. Richeuk 480 
Louisiana State of, ex rel. Hatch 

V. City Bank of X. Orleans 474 

Loveridge v. Botham 212 

Low V. C. & P. R. R. 440 

V. MitcheU 54, 451 

r. Perkins 175 

Low's case 252 

Lowber v. Shaw 399, 416 

Lowe V. Boteler 174 

V. JoUfee ^ 384, 443 

V. Lord Huntingtower 301 

V. Peers 19 

Lowell V. Daniels 24 

Lower v. Winters 58 

Lowry v. Cady 84 

Loyd I'. Freshfield " 248 

t'. Stretton 392 

Lubbock V. Tribe 558 

Lucas V. Bristow 280, 282 

V. De La Cour 177, 281 

V, Groning 230 

V. Ladew 43 

V. Nockela 69 



INDEX TO CASES CITED. 



Luce V. Dorchester Mut. Fire Ins. 




Co. 




441 


Ludlam ex d. Hunt 




84 


Lufkin V. Haskell 


331 


405 


Lumley v. Gye 




320 


Lund V. Tyngsborough 


108 


,124 


Limiss V. Rowe 




422 


Lush V. Druse 




301 


Luttrell V. Ileynell 163 


,469 


,533 


Lygon V. Stutt 




142 


Lyman v. Lyman 


207 


521 


V. Philadelphia 




461 


V. State Ins. Co. 




441 


Lynch v. Benton 




306 


V. Gierke 




484 


V. Commonwealth 




81c 


V. McHugo 




118 


Lynde v. Judd 




508 


Lyon V. Ely 




323 


V. Home 




38 a 


V. Lyman 


580, 


581 


V. Miller 




281 


V. Reed 




265 


Lyons v. Gregory 




84 



M. 



MaberleyiJ. Robins 




6 


Maby v. Shepherd 




69 


Macbride v. Macbride 451 


456, 458 


Macdonald r. Longbottom 




288 


Machel V. Winter 




288 


Mackenzie v. Yeo 


244 


311 


Maddison v. Xutall 




189 


Maddox v. Sullivan 


260 


381 


Magee v. Scott 


34 


513 


Magennis v. MacCulIogh 




265 


Magill V. Kauffman 


163 


332 


Magnay v. Knight 




87 


Magoun v. N. E. Ins. Co. 




541 


Mahan v. McGrady 




569 


Mahurin v. Bickford 




505 


Main v. Xewson 


409 


423 


Maine v. Harper 




117 


Maine Stage Co. v. Longley 




430 


Mainwaring v. Mytton 




401 


Maitland (C Cit. Nat. Bank 




469 


Major 1'. State 




6 


Makepeace v. Bancroft 




301 


Malaun v. Ammon 




156 


Malcom v. Scott 




171 


Malcomson v. C! lay ton 




51 


V. O'Dea 




143 


Malin V. INIalin 




200 


Malone v. Bartley 




501 


v. B. & W. R. R. Co. 


38 a 


Moloney f. Piper 




458 



Malony's case 227 

Malpas V. Clements 40 

Maltby v. Christie 194 

Malton V. Nesbitt 440 

Manby v. Curtis 142, 155 
Manchester Bank v. Moore 346, 356 
Manchester Iron Manuf. Co. v. 

Sweeting 418 

Manchester Mills (The case of) 139 

Manchester (The) 113 

MandeviUe v. Welch 172, 173 

V. Wilson 73 

Mann v. Godbold 97 

V. Locke 112 

V. Mann 296 

V. Pearson 301 

Manners v. Postan 569 

Mannifold v. Pennington 72 

Manning v. Lechmere 147 

Mant V. Mainwaring 353, 356 

IMany v. Jagger 190 

Marbury v. Madison 251 

March r. Commonwealth 6 

Marcy v. Stone 109 

V. Barnes 581 

Marianski /'. Cairns 197 

Maria Das Dorias 493 

Marine Ins. Co. v. Hodgson 73 

Mariner v. Dyer 349 

V. Saunders 558 

Markey v. Mut. Ben. Life Ins. 

Co. 320 

Markham v. Gonaston 568 

Marks V. Lahee 115, 116, 1.50, 152 

]\Iarland v. Jefferson 392, 402 

Marquand v. Webb 395 

Marriage v. Lawrence 484, 493 

Marsden v. Stanfield 331 

Marsh v. Collnet 484, 570 

V. Davis 110 

V. Gold 192 

V. Howe 239 

V. Jones 165 

V. Keith 246 

V. Pier 531 

Marshall v. Baker 303, 304 

V. Cliif 186, 194 

v. Ciougler 566, 568 

V. Lynn 302, 304 

V. Thraikill 395 

^larsliall's appeal 287 

^Marston v. Downs 241 

V. Ilobbs 24 

Martin v. Farnham 450 

V. (Jood 437 

V. Guuby 484 

V. Horrell 416 

r. K el ley 397 

V. Macniire 681 



INDEX TO CASES CITED. 



Martin v. IMartin 6 

V. NicoUs 5i6 

V. Pavne 4S9 

V. Root 112, 174 

V. Travellers Ins. Co. 435 

Martin's case 65 

Llartindale v. Follett 568 

Martinean v. Woodland 416, 420 

Martinstein v. His Creditors 118 

Marvin i\ Richmond 192 

Marx V. People 449 

Mary Grigg's case ' 345 

Mary Stewart (The) 40 

Mary (The) 18 

Mash V. Denshana 73 

V. Smith 260, 359 

Mason v. Mason 30 

Masternian v. Judson 73 

Masters v. Abraham 114 

V. Dra\ix)n 392 

V. Miller 565, 566, 568 a 

Mather v. Clark 349 

V. Goddard 87 

V. Trinity Church 45 

Mathes v. Robinson 118 

Mathews v. Coalter 564 

V. Haydon 416 

V. Houghton 513 

V. INIarchant 429 

V. Smith 392 

Matthew v. Osborne 22 

Matthews v. Colburn 164 

Matthews' estate 239 

Mattocks V. Lyman 197, 201 

V. Wheaton 310 

Maugham v. Hubbard 90, 436, 437 

Mauran v. Lamb 330, 353, 452 

Mawson v. Hartsink 461 

May V. Babcock 305 

V. Brown 63 

V. Taylor 180 

Mayer v. Sefton 93 

Mayfield v. AVadley 271 

Mayhew v. Gay Head 275 

V. Thayer 449 

Mayley v. Shattuck 543 

Mayor v. Harwood 480 

V. Johnson 558 

Mayor of Carmathen v. Lewis 73 

Colchester v. Lewis 333 

Doncaster v. Day 163 

Soutliampton v. Graves 474 

McAdams v. Stilwell 104 

McAleer v. Horsley 469 

McArthm- v. Hurlburt 443 

McBraine v. Fortune 417 

McBride v. Watts 197 

McCance v. Lon. & N. W. R. R. 

Co. 208 



McCann v. The State 215 

McCarty v. Leary 469 

McClane v. White 296 a 

McClenkan v. McTkliUan 199, 201 

McClurg V. Wright 382 

McCorkle v. Binns 581 

McCormick v. Garnett 486 

McCraw v. Gentry 572 

McCrea v. Purmort 26 

McCuilock V. Tyson 392 

McCully V. Malcolm 352 

McCuUy's case 65 

McCutcheon t'.McCutcheon 461 

McDaniel v. Hughes 542 

McDonald v. Clu'istie 440 

V. Evans 463 

V. Longbotham 282 

V. Rainor 530 

V. Rooke 49 

V. Savoy 55 

McDonnell v. State 49 

McDowell V. Langdon 532 

V. Stimpson 517 

McElmoyle v. Cohen 548 

McFadden v. Kingsbury 89 

V. Murdock 53 

McFarland v. Shaw 156 

^IcGahey v. Allston 82, 92, 187 

McGee v. Prouty 281 

V. Scott 41 

McGerry v. People 331 

McGill V. Rowand 348 

McGrath v. Sea,grave 513 

McGregor v. Keily 40 

McGuire v. Maloney 338 

V. Sayward 507 

McGuire's case 82 

McGunagle v. Thornton 416 

Mcllroy v. Mcllroy 430 

Mclntire v. Oliver 112, 174 

Mclntyre v. IMancius 451 

V. People 363 

Mclver v. Humble 356, 494 

V. Walker 301 

McKavlin v. Bresslin 474 

McKee v. Hicks 568 a 

V. Nelson 440 

McKelvy v. De Wolfe 323 

McKenire v. Fraser 21, 144, 570 

McKenney v. Dingley 53 

McKeone v. Barnes 577 

McKinney i'. Neil 462 

McKinnon v. Bliss 5 

McKnight v. Lewis 352 

McKonkey v. Gaylord 577 

INIcLanathan v. Patten 190 

McLean v. Hertzog 89 

V. State 159, 432 

McLellan v. Crofton 118 



lii 



INDEX TO CASES CITED. 



McLellan v. Cumberland Bauk 275 

V. Longfellow 239 

V. Ilichardson 252 

McMahon v. Burchell 171 

V. Lennard 40 

McMicken v. Beaucliamp 504 

V. Connnonwealth 275 

McMinn v. Whelan 38 

McXaug-hten's case 440 

McNeil V. Philip 207 

Ex parte 316 

McQueen v. Great West. R. R. 

Co. 34 

McRae v. Lilly 54 

McTyer v. Steele 305 

Mc Williams v. Nisby 24 

Mead v. Boston 537 

V. McGraw 49, 461 

V. Robinson 413 

Meade v. McDowell 187 

V. Smith 252 a 

Meadows v. Meadows 268 

Meagoe v. Simmons 436, 449 

Meath (Bp. of) v. Ld, Belfield 137, 

138 
Meath (Bp. of) v. Marquis of 

Winchester 142, 1.54, 240 

Mechanics' Bank of Alexandria 

V. Bank of Columbia 112 

Medomak Bank v. Curtis 303 

Meeker v. Jackson 349 

Meekins v. Smith 316 

Meike v. St. Sav. Inst. 564 

Melcher v. Flanders 569 

Melen v. Andrews 197, 199, 233 

Melhinch v. Collier 51 a, 53, 444 

Mellish V. Rawdon 49 

V. Richardson 73 

Mellville's (Ld.) case 6, 65, 234, 482 
Melvin v. Whiting 17, 164, 310 

Mercer v. Sparks 34 

V. AVhall 76 

V. Wise 207 

Merchants' Bank v. Cooke 332 

1'. Spicer 430 

Meredith v. Footner 185 

Meriam v. Harsen 293 

Merle v. More 243 

Merriam v. Hartford & N. H. 

R. R. Co. 329 

V. Ithaca and Oswego 

Raih-oad Co. 437 

V. Langdon 73 

V. Middlesex Ins. Co. 441 

Mon-ifield v. Rohbins 489 

Merrill v. Blodgett 294 

Merritt v. 'I'hunipson 41 

Mersey & Elwell Nav. Co. v. 

Do iglas 62 



Mertens v. Xottebohms 352 

Meserve v. Hicks 501 

Mestayer v. Biggs 284 

Metcalf' V. Van Benthuysen 558 

Metropolis (Bank of the) v. 

Jones 385 

Metters v. Brown 34, 179 

Metzger's case 552 

Metzner v. Bolton 66 

Mevey v. Matthews 356 

Mexico & S. A. Co. in re 451 

Meyer j). Beardsley 276 

V. Huncke 565 

Meynell's case 221 

Michaels v. Shaw 521 

V. Williams 49 

Michener v. Lloyd 86 

Mickey v. Burlington Ins. Co. 462 

Middlesex's (Sheriff of) case 6 

Middleton v. Brewer 205 

V. Mass 142, 144 

V. Melton 116, 120, 147, 

150, 153, 187 

Middletown Savings Bank v. 

Bates 333 

Mifflin V. Bingham 118 

Milbourn v. Ewart 286 

Miles V. Dennis 179 

V. McCullough ' 316 

V. O'Hara 165, 166 

V. Sheward 51 

Milford V. Worcester 484 

Millay v. Butts 34 

Miller v. Baker 271 

V. Bingham 190 

V. Covert 532 

V. Falconer 396, 417 

V. Gilleland 568, 568 a 

V. Goodwin 304 

V. Hale 513 

V. Irvine 268 

V. Mariners' Ch. 95, 333, 422 

V. McQuerry 6 

V. Mut. Ben. Life Ins. Co. 441 

V. Russell 163 

V. Smith 450 

V. Stevens 280 

V. Travers 288, 289, 290, 291, 

297, 301 

V. Williams 205 

Miller's case 440 

JMilliken v. Coombs 269 

V. ^Martin 564 

Millman v. Tucker 457 

Mills V. Barber 74 

V. Duryee 504 

V. Gore 361 

t;. Oddy 75, 237, 241 

V. Twist 572 



INDEX TO CASES CITED. 



liii 



MiUs t'. Wyman 304 

Milne v. Leisler 108 

Milward v. Forbes 193 

V. Hallett 416 

iMilword v. Ingram 302 

Mima Queen v. Hepbm-n 124 

Minet v. Gibson 53 

V. Morgan 240 

Minns v. Smith 463 
!Minor v. Mechanics' Bank of 

Alexandria 356 
V. Tillotson_ 82, 83, 84 

Minter v. Crommelin 40 

Mints V. BethU 93 

Mintm-u's case 65 

jMish r. Wood 440 

Mishler v. Baumgardner 386 

Mitchell V. Belknap 119 

V. Clark 118 

V. Kingman 284 

V. Mitchell 421 

V. Sellman 468 

Mitchum r. State 108 

Mobley v. Hamit 461 

Mockbee v. Gardiner 3j8 

Modawell v. Holmes 5 

Moffitt V. The State 363 

Mohawk Bank v. Atwater 421 

MoiUett V. Powell 73 

Moises V. Thornton 58, 195 

MoUett V. Wackerbarth 568 

Molton V. Harris 87 

Molyneanx v. Collier 192 

Iklonday v. State 108 
Monktou V. Att'y-Gen. 103, 104, 105, 

131, 134, 135 

Monroe (Bank of) v. Culver 115 

V. Field 113 

Monroe v. Twistleton 254, 337 
Moutee v. The Commonwealth 49 

Montgomery i;. Ohio 165 

V. Pickering 240 

V. Richardson 205 
V. The State 158, 161 a 

Moody V. King 356 

V. RoweU 445, 447, 448, 577, 
580, 581 

Mooers v. Bunker 38, 103 

Mooney v. Kennet ^5 

Moons V. De Bernales 550 

Moore v. Conn. River R. R. Co. 113 

V. Griffin 405 

V. Hitchcock 96 

V. King 272 

V. Moore 266 

V. Pearson 163 

V. People 450, 455 

V. Terrell 240 

Moore's case 227, 484 



Moorehouse v. Xewton 118 

Moorhouse v. De Passou 421 

Moorish v. Foote 394^ 396 

Mordecai v. Beal 37, 84 

More V. Salter 568 

V. Smith 199 

V. Watts 533 

Moreton's case 533 

Morewood v. Wood 58, 128, 130, 136, 

137, 145, 578 

Morgan v. Baker 532 

V. Brydges 445, 447 

V. Frees 449 

V. Griffith 284 

V. Mark 382 

V. Morgan 101 

V. Thorne 523 

Moriarty v. Lon. C. & D. R. R. 

Co. 37,196 

Morrell v. Dickey 544 

Morrill v. Foster 104 

Morris v. Bethell 53 

V. Briggs 117 

V. Bufdett 197 

V. Daubigny 409 

V. Davis 28 

V. Hanner 497 

V. Hauser 562 

V. Keyes 532 

V. Lotan 76 

V. MiUer 209 

V. Nixon 178 

V. Pugh 521 

V. Thornton 426 

V. Vanderen 564 

V. Wadsworth 573 

Morrison v. Kelley 471 

V. Lennard 3Glo 

V. Tm'nour 272 

V. Woolson 19 

Iklorrissey v. Ingham 102 

Morse v. Conn. R. R. Co. 114 

V. Potter 118 

V. Royall 174 

V. Shattuck 26 

V. Weymouth 277, 288, 298 

Morss V. Morss 364 

Mortimer v. McCallan 94, 113, 474, 

584 

V. Mortimer 215 

Morton v. Chandler 275, 284, 474 

V. Penny . 66 

V. Webster 485 

Moscati V. Law^son 409 

Mosely v. Davis 130, 134, 135, 138 

17. Hanford 281 

V. Martin 290 

V. Mastou 5 

Mosey 's case 231 



liV 



INDEX TO CASES CITED. 



Hosier's case 
Mosley v. Massey 
Mossman v. Forest 
Mostyn v. Fabrigas 
Mott V. Doughty 

V. Hicks 
Mount V. Bogert 
V. Larkius 



301 

6 

49, 320, 488 

572, 575 

423 

192 

49 



Mountstephen v. Brooke 191 

Muldowney v. 111. Central R. R. 440 

MuUer v. Morris 489 

Mulvy V. Mohawk Valley Ins. Co. 441 

Mumford v. Gothing 282 

Munderson v. Reeve 174 

Munro v. De Chemant 27, 207 

Munroe v. Cooper 81 a 

V. Perkins 303 

Mitrdock v. Union Bank 38 

Murphy v. Commonwealth 254, 341, 

448 

V. Orr 41 

Murray, in re 30 

V. Buchanan 558 

V. Carrett 558 

V. Coster 192 

V. Judah 430 

V. Lord Stair 284 

V. Marsh 430 

V. ShadweU 361 

V. Toland 197 

Mussey v. Beecher 114 

Mussou V. Fales 379 

Mut. Ben. L. Ins. Co. v. Tisdale 550 

Myers v. Baker 200 

V. Toscan 581 

Myrick v. Dane 261 



N. 

Nash V. Gilkieson 54, 55 

V. Van Swearingen 452 

Nason v. Thatcher 333 

Natchbolt v. Porter 2(55 
National Bank of St. Charles v. 

De Bernales 203 

Naylor v. Semmes 452 

Neal V. Wilding 104 

Neale v. Fry 497 

V. Parkin 197 

Nealley v. Greenough 561 

Needham v. Law 333 

V. Smith 421 

Neelson v. Sanborn 268 

Neil V. Cheves 301 

V. Neil 272 

Neile v. Jakle 197 

NeiLson v. McDonald 361 

Nelius V. Brickell 572 



Nellis V. McCarn 


440 


Nelson v. Ewell 


319 


V. Hall 


301 


V. Patrick 


49 


V. People 


40 


V. State 


432, 462 



V. The United States 323 

V. Whittall 575 

New Eng. Bank v. Lewis 530 

Glass Co. V. Lovell 440 

New Hampshire, &c., Ins. Co. v. 

Hunt 68 

New Haven Co. Bk. v. Mitchell 115, 

116, 572 

New Jersey Bay v. Cook 1 17 

New Milford v. Sherman 110 

Newbolt V. Pryce 291 

Newburgh v. Newburgh 301 

Newcastle (Dk. of) i'. Kinderley 37 

Newcomb v. Drummond 509 

V. Griswold 457, 465 

V. Presbrey 564 

Newell V. Mayberry 565, 568 

V. Newton 6 

V. Simkin 473 

Newhall v. Holt 203 

V. Ireson 301 

V. Jenkins 193 

Newham v. Raithby 493 

Newman v. Atlas Ins. Co. 310 

V. Doe 498 

V. Jenkins 41, 550 

V. Stretch 97, 103 

Newsam v. Carr 55 

Newsome v. Theghen 284 

Newton v. Belcher 37, 206, 207 

V. Beresford 210 

V. Harland 310 

V. Harris 450, 455 

V. Higgins 118 

V. Liddiard 204, 206, 2U7 

V. Mut. Ben. Life Ins. 

Co. 108 

Nias V. N. & E. Railway Co. 240 

Nichols V. Alsop 38 

V. Dowding 111, 112, 177 

V. Downs 196, 219 

V. Goldsmith 106 

V. Ilolgate 385 

V. Johnson 268, 566 

V. Parker 134, 135, 145 

V. Webb 115, 116, 121, 147 

Nickle V. Baldwin 119 

Nieman v. AVard ' 145 

Niles V. Brackett 421 

r. Culver 305 

Nix V. Cutting 398 

Nixon V. Porter 479 

Noble V. Kennovvay 292 



INDEX TO CASES CITED. 



Iv 



Noble V. ^lartin 






163 


V. IMcClintock 






163 


Noke V. Ingham 






356 


Noonan v. State 






199 


Norcott V. Orcott 






409 


Norcutt V. Mottram 






73 


Norden v. Williamson 






172 


Norfolk V. Gaylord 


4 


51, 4 


51 a 


Norris v. Beach 






316 


V. N. Am. Ins. 


Co. 




76 


North V. IVIiles 






180 


North Lib. (Bk. of) v. 


Davis 43.5 


444 


North River INIeadow Co. 


V. 




Shrewsbury Church 






564 


Northampton Bank v. 


Whiti 


ng 


266 


Northrop v. Wright 






21 


Northrup v. Jackson 






87 


Norton v. Coons 




276 


281 


V. Doherty 






532 


V. Pettibone 




109 


189 


V. Kearney 






189 


Norwood V. Morrow 






409 


Nottage V. Prince 






38 a 


Nom-se v. McCay 






116 


V. Nourse 






22 


Novelli V. Rossi 






547 


Nowell V. Davies 




389 


, 408 


Noyes v. Canfield 






280 


V. Ward 


108, 


128 


, 139 


Nute V. Bryant 






420 


V. Nute 


40, 49, 


440 


,449 


Nutting V. Page 






108 



o. 

Oakapple v. Copons 197 

Oakes v. Hill 485, 498 

O'Brien v. Davis 385 

V. Gilchrist 305 

O'Callaghan v. Mm-phy 554 

Odell v.^Culbert 118 

Odenbaugh v. Bradford 284 

Odiorne v. Bacon 513 

V. Wade 331, 405 

V. Winkley 52, 421, 423, 449 

Oelricks v. Ford 292 

Ogden V. Miller 117 

Ogle V. Atkinson 207 

V. Pelaski 421 

Ohl V. Eagle Ins. Co. 261 

O'Kelly V. O'Kelly 110 

Oldnall V. Deakin 21 

Oldtown (Bank of) v. Houlton 332 

Oliphant v. Taggart 575 

Olive V. Guin 503 

Oliver v. Bartlett 101 

V. State 156, 158, 159, 164 

V. Watking 69 



Omara v. Commonwealth 334 

Omichund v. Barker 328, 369, 371 

O'Neill V. Read 171 

Opeuheim v. Leo Wolf 6 

Orange v. Springfield 175 

Orcatt V. Ranney 55 

Ord V. McKee 485 

Orman v. Riley 485 

Orne v. Townsend 495 

Orr V. Morris 471 

Orrett v. Corser 147 

Osborn v. Staley 480 

V. Thompson 74, 81 

V. U. S. Bank 178 

Osborne v. London Dock Co. 451 

Osgood V. Manhattan Co. 174, 176 

Osterhout v. Roberts 533 

Oswald V. Leigh 39 

Otterson v. Hofford 126 

Outram v. Morewood 22, 137, 138, 

145, 164, 531, 536 

Ovenston v. Wilson 573 a, 577 

Over V. Blackstone 358 

Owen V. Bartholomew 301 

V. Boyle 485 

V. Flack 196 

V. Warburton 252 a 

Owens V. Collinson 402 

Owings V. Beall 519 

V. Henderson 118 

V. Hull 6, 490, 519 

V. Low 112, 173, 174 

V. Speed 389, 484 

V. Wyant 86 



P. 



Packard v. Hill 514 

V. Richardson 268, 385 

Packer v. Gonsalus 180 

Paddock v. Salisbmy 55 

Page V. F'aucett 5 

V. Homans 577 

V. Osgood 76 

V. Page 349 

V. Parker 434, 440 

V. Sheffield 281, 303 

Paget V. Paget ■ 507 

Paige V. Cagwin 190 

V. Hazard 440 

Pain V. Beeston . 462 

Paine v. Edsell 564 

V. Hussey 420 

V. Mclntier 281 

V. Tilden 354, 469 

V. Tucker _ 96 

Palethorp v. Furnish 185 

Palmer v. Fogg 323 



Ivi 



INDEX TO CASES CITED. 



Palmer v. Haia^lit 




462 


Payne v. Ibbotson 




437 


V. Lord Aylesbury 




516 


V. Rogers 


172 


173 


V. Maclear 




437 


V. TreadweU 




5 


V. Stephens 




272 


Payson v. Good 




191 


V. Stevens 




91 


Peabody v. Denton 




558 


V. Trower 




449 


Peaceable v. Keep 




429 


Pangborn v. Young 




480 


V. AVatson 


109 


147 


Panton v. Holland 


60, 6i 


Peacock v. Harris 




195 


V. Williams 




49 


Pearce v. Gray 




528 


Papendick v. Bridgewater 




109 


V. Hooper 




571 


Paris V. Hughes 




361 


Pearcy v. Fleming 




430 


Park V. Mears 




572 


Pearse v. Pearse 




240 


Parke v. Bird 




558 


Pearson v. Coles 




75 


V. Smith 




385 


V. Fletcher 




246 


Parker v. B. & H. Steamboat Co. 


440 


V. Le Maitre 




53 


V. Carter 


239 


241 


Pease v. Hurst 




174 


V. Green 




113 


V. Peck 




480 


V. Grout 




190 


Peaslee v. Gee 




301 


V. Hardy 




2 


V. Robbins 




42 


V. Haskins 




572 


Peate's case 




339 


V. Hill 


568 a 


Pecker v. Sawyer 




385 


V. McWilliam 




432 


Pedler v. Paige 




572 


V. Merrill 




112 


Pedley v. Wellesley 


336 


340 


V. Mitchell 


331 


405 


Peele v. Merch. Ins. Co. 




197 


V. Morrell 




178 


Peet V. Dougherty 




384 


V. Palmer 


49, 66 


Peile V. Stoddart 




240 


V. Staniland 




271 


Peirce v. Newton 




461 


V. Vincent 




402 


Peisch V. Dickson 


280 


,288 


I'. Yates 




243 


Pejepscot Prop's v. Ransom 


20,46 


Parkhui'st v. Lowton 451 


,456 


459 


Pelamourges v. Clark 




440 


V. Van Cortland 




268 


Pell V. PeU 




356 


Parkin v. Moon 




434 


Pelletreau v. Jackson 


22 


101 


Parkins ik Hawkshaw 


186 


239 


Peltzer v. Cranston 




118 


Parks V. Dunkle 




558 


Pember v. Mathers 




260 


V. Edge 




73 


Pender v. Fobes 




281 


V. Richardson 




37 


Pendleton v. Rooth 




189 


V. The Gen. Int. Assur. Co 


288 


Pendock v. Mackinder 


372 


373 


Parrots v. Thacher 


260 a 


Penn v. Bibby 




584 


Parry v. Fairhurst 




73 


Pennellr. Meyer 




201 


Parsons v. Copeland '. 


195, 527 a 


Penniraan v. Hartshorn 




268 


V. Huff 




322 


Pennsylvania v. Bell 




49 


V. Phipps 




385 


V. Farrell 




414 


V. PurceU 




96 


Pennsylvania (Bank of) v. 


Hal- 




Parten v. Cole 




89 


demand 




5S1 


Partenheimer v. Van Order 




48 


Penn. R. R. Co. v. Dormor 




480 


Partridge v. Coates 




560 


Penny v. Porter 


58, m 


Patten v. Moor 


239 


242 


Penny Pot Landing v. Philadel- 




I'atterson v. Choate 


112 


174 


phia 




145 


V. Tucker 




437 


Penn^-packer v. Umberger 




385 


V. Winn 




349 


Penobscot Boom Corp. v. 


L,ara- 




Patton r. Ash 




38 


son 




563 


V. Craig 




116 


Penrose v. Griffith 




23 


v. Goldsborough 




180 


Penruddock v. Hammond 




240 


V. Ryan 




117 


People V. Ah Fat 




469 


Paul t. Meek 




97 


V. Atkinson 




243 


I'aulette v. Brown 


49 


461 


V. Bafi'ie 




219 


PauU i\ Brown 


389 


408 


V. Blakeley 




458 


Paxton I'. Courtnay 




282 


People (The) v. Bill 




363 


V. Douglas 




451 


V. Carpenter 




343 



INDEX TO CASES CITED. 



Ivii 



People (The) v. CoUins 37 

V. Costello 380, 381 

V. Davis 461 

V. Dean 362, 4U 

V. Devlin 480 

V. DoyeU 409 

V. Eastwood 440 

t*. Franklin 65 

V. Garbutt 81 c 

V. Gates 247 

V. Gay 469 

V. Glenn 161 

V. Green 198, 346 

V. Herrick 375, 457 

V. Holbrook 89 

V. Hopson 92 

V. HoweU 414 

V. Irving 353, 452 

V. Irwin 296 a 

V. Jones 331 

V. Kelly 451 
V. Knickerbocker 158 

V. Lohman 407 

V. Mahoney 480 

V. Manning 457 

V. Mather 451, 454 
456, 461 

V. Matteson 369 

V. McCrea 102, 216 

V. McGarren 369 

v'. McMahon 225 

V. McXair 367 

V. Miller 249 

V. JVlinch 484 
ex rel. Ordronaux 

V. Chegaray 343 

V. Pease 378 

V. Phillips 247 

V. Pitcher 37 

V. PoUyon 471 

V. Price 49 

V. Rathbun 37 

V. Eobinson 158, 229 

V. Rogers 229 

V. Sanchez 434, 442 

V. Schry\'er 81 c 

V. Shea 101 

V. Sheriff of New 

York 239 

V. Spooner 580, 581 
V. Stanley 37, 111, 233 

V. Starke 455 

V. Sterne 480 

V. Throop 474 

V. Tyler 331, 468 

V. Vernon 101 

V. Videto 13 a 

V. Whipple 375, 379 

V. Zeyst 484 



Pepin V. Solomons 51, 63 

Pepoon V. Jenkins 501, 505 

Percival v. Xanson 115, 147, 152 

Perham c. Reynall _ 17-i 

Perigal v. Nicholson 155, 421 

Perkins v. Perkins 42 

V. Walker 531 

V. Webster 301 

Pernam v. Weed 301 

Perrin v. Noyes 81 a 

Perry v. Fleming 429 

V. Gerbeau 200 

V. Gibson 445 

V. Massey 443 

V. Simpson ^g. Co. 171, 186 

Perry's case 343 



Peri-vman v. Steggall 



427, 428 



Petapsco Ins. Co. v. Southgate 323 

Peterborough v. Jaffrey 440 

Peter man r. Daws 398 

Peters v. Warren Ins. Co. 541, 543 

Peterson v. Stoffles 388 

Petherick v. Turner 112 

Peto V. Blades 398 

Petrie'.s case 243 

Pettibone v. Deringer 323, 352 

Pettingill v. Dinsmore 55 

Petty V. Anderson 185 

PejTeaux ;;. Howard 6 

Pevtoe's case 302 

Peyton V. HaUett 392 

Pevtona (The) 427 

Pharaoh v. Lush _ 284 a, 288 

Phealing v. Kenderdine 451 

Phelps V. Cutler 80 

V. Foot 101 

V. Riley 167, 418 

Phenix v. Ingraham 180, 392 

Philadelphia & Trenton Co. v. 

Stimpson 423, 449 
Philadelphia W. & B. R. R. Co. 

V. Howard 164 

Philips V. Kelley 102 

Phillip v. People 53 

Phillips V. Allen 81 

V. Berick 532 

V. Cole 190 

V. Earner 445 

V. Hall 207 

v- Hunter 542 

V. living 49 

V. Kingfield • 461 

V. Shaw 70 

V. Wells 565 

V. Winburn 227 

Phillisku-k v. Pluckwell 78 

Phipps V. Pitcher 409 

V. Schulthorpe 207 

Piatt V. jNlcCullough 20 



Iviii 



INDEX TO CASES CITED. 



Pickard v. Bailey 


486, 514 


Poole V. Warren 




558 


V. Sears 


204 


Pooler V, Curtis 




455 


Pickering v. Bp. of Ely 


115 


Pope V. Askew 




577 


V. Dowson 


281 


V. Levereux 




180 


V. Noyes 


24G 


Poplin V. Hawke 




550 


Picton's (Gen.) case 


492 


Porter v. Byrne 




275 


Piddock V. Brown 


361 


V. Ferguson 




108 


Pierce v. Butler 


399, 401 


V. Judson 




115 


V. Chase 


423 


V. Pillsbury 




322 


V. Hoffman 


53 


V. Poquonuoc Man. 


Co. 


440 


V. Newton 


461 


V. Seller 




54 


V. Parker 


288 


V. State 


37 


, 432 


V. Weymouth 


304 


Potey V. Glossop 




40 


V. Wood 


112 


Potter V. Baker 




532 


Pierson v. Hutchinson 


558 


V. Sewell 


296 a 


Pigot V. Davies 


521 


V. Ware 




386 


V. HoUoway 


437 


V. Webb 




55 


Pike V. Crehore 


513 


Potts V. Everhart 




109 


V. Hayes 


109 


Poulter V. Killingbeck 




271 


Pile V. Benham 


428 


Poultney v. Ross 




118 


Pim V. Currell 


139 


Powel V. Hord 




394 


Pipe V. Steel 


356 


V. Milburn 




35 


Pitcher v. Ban-ows 


138 


V. Monson 




26 


Pitman v. Maddox 


117 


Powell V. Blackett 




572 


Pitt V. Chapelow 


. 207 


V. Bradbui-y 


473 


, 559 


V. Shew 


49 


V. Edmunds 




281 


Pittam V. Foster 


176 


V. Ford 




577 


Pitton V. Walter 


510 


V. Gordon 




392 


Pitt^field, &c. P. R. Co. v. 


Harri- 


V. State 




462 


son 


484 


V. Waters 




164 


Pizarro (The) 


31, 37 


Power V. Frick 




576 


Planche v. Fletcher 


488 


V. Kent 




239 


Plank-Road Co. v. Bruce 


20 


Powers V. McFerran 




575 


V. Wetsel 


568 a 


V. Nash 




188 


Plant V. Condit 


284 


V. Russell 




74 


V. McEwen 


179 


V. Shepard 




323 


Planters' Bank v. George 


452 


V. Ware 




566 


Plattekill v. New Platz 


331 


Prather v. Johnson 


116 


,120 


Plaxton V. Dare 


143, 150 


V. Palmer 




41 


Pleasant r. State 


432 


Pratt V. Andrews 




54 


Plimpton V. Chamberlain 


109 


V. GosweU 




559 


Plambe v. Whiting 


387 


V. Jackson 




288 


Plumer v. Guthrie 


284 


Prentice v. Achorn 




284 


Plummer v. Briscoe 9 


2, 113, 207 


Prescott V. Wright 




284 


V. Sells 


185 


Prest V. INIercereau 




118 


Plunkett V. Cobbett 


251, 252 a 


Preston v. Bowmar 




301 


Pocock V. Billings 


190 


V. Carr 




240 


Podgett V. Lawrence 


189 


V. Harvey 




531 


Poignard v. Smith 


349 


V. Merceau 


275 


281 


Pole V. Rogers 


320 


PrettjTnan v. Dean 




358 


Pomeroy v. Baddeley 


432 


Provost V. Gratz 




564 


Pomeroy's case 


81c 


Prewitt V. Tilly 


331 


430 


Pond V. Hartwell 


420 


Price V. Currell 




128 


Ponsford v. O'Connor 


320 


V. Dewhurst 


541, 


516 


Pontifex v. Jolly 


81 


V. HaiTison 




659 


Pool V. Bridges 


108 


V. Harwood 




208 


V. Dicas 1] 


5, 116, 120 


V. Hollis 




183 


Poole V. Palmer 


395, 407 


V. Littlewood 




137 


V. Richardson 


440 


V. Lord Torrington 




116 



INDEX TO CASES CITED. 



lix 



Price V. Morris 




323 


V. Page 




289 


V. Powell 




440 


Priest V. Nichols 




48 


Primm v. Stewart 




41 


Prince v. Blackburn 


572, 


575 


V. Samo 




467 


V. Shepard 




420 


V. Smith 




118 


V. Swett 




118 


Printup V. Mitchell 113, 


200 


561 


Printz V. Cheney 




451 


Pritchard v. Bagshawe 




203 


V. Brown 


26 


266 


V. Draper 




112 


V. Foulkes 




213 


V. ]\IcOweu 




lis 


V. Powell 




130 


V. Walker 




195 


Pritt V. Fairclough 


40, 


116 


Proctor V. Lainson 




180 


Prouty V. Ruggles 




322 


Provis V. Reed 




469 


Pullen V. Hutchinson 561, 


569 


575 


V. Shaw 




561 


V. The People 




335 


Pully V. Hilton 




485 


Punderson v. Shaw 




118 


Purcell V. McNamara 56, 


30, 70, 78 


Parviance v. Di-yden 


358 


395 


Putnam v. Lewis 




212 


Putt V. Rawstern 




533 


V. Roster 




533 


Pye's case 




65 


Pyke V. Crouch 




536 


Pym V. Campbell 




284 


I^t V. Griffith 




572 


Q. 






Quarfcerman v. Cox 




422 


Queen (The) v. Bertrand 




320 


V. Cooper 




198 


V. Muscott 




257 


Queen's (The) case 88, 201, 


218, 


231, 


370, 371, 462, 163 


405 


, 467 


Quick V. Quick 




582 


V. Staines 


207 


, 210 


Quimby v. Buzzell 




572 


V. Wroth 




430 


Quincey v. Quincey 




285 


Quinn v. Nat. Ass. Co. 




441 


V. State 




35 



R. 

Radbnrn v. Morris 
Radcliffe v. Fuxsman 



428 
240 



Radcliffe v. United Ins. Co. 479, 491 

Radford i'. INlcIntosh 92, 195 

Raffles V. Wichelhaus 288 

Raggett i\ Musgrave 198 

Ralph V. Brown 558 

Ralston v. Miller 145 

Ramadge v. Ryan 441 

Rambeit v. Cohen 90, 436 

Rambler v. Tryon 440 

Ramkissenseat v. Barker 371 

Ramsbottom v. Senior 215 

V. Turnbridge 87, 39, 96 

Ramuz v. Crowe 558 

Rancliffe (Lord) v. Parkins 144 

Rand v. Mather 303 

Randall v. Gurney 316 

V. Lynch 205 

V. Parramore 551 

V. PhiUips 392 

Randall's case 340 

Randel v. Chesapeake 563 

Randle v. Blackburn 201 

Randolph v. Gordon 142 

Rands v. Thomas 383 

Rangeley v. Webster 540 

Rank v. Shewey 87 

Rankin v. Blackwell 564 

V. Horner 194 

V. Tenbrook _ 109 

Ransom v. Keyes 427 

Rape V. Heaton 488 a 

Raper v. Birkbeck 566 

Rapeyle v. Prince 536 

Rastall V. Stratton 70 

Ratcliff V. Chapman 130 

V. Pemberton 302 

V. Planters' Bank 568 a 

V. Ratcliff 507 

V. Wales 254, 344 

Ravee v. Farmer 532 

Raven v. Dunning 356 

Rawlings v. Chandler 469 

Rawlins v. Desborough 74, 441 

V. Richards 116 

Rawls V. Am. Life Ins. Co. 441 

Rawson v. Haigh 108, 110 

V. Turner 533 

V. Wallcer 281, 304 

Raymond v. Longworth 484 

V. Raymond 281 

V. Squire 173 

Raynham v. Canton 489, 505 

Rea V. Missouri 456 

Read v. Brookman 45, 566 

V. Dunsmore 73 

V. James 445 

V. Passer 86, 107, 493 

V. Sutton 508 

Reade's case 13, 210 



Ix 



INDEX TO CASES CITED. 



Reading v. McCubbin 


145 


Regina v. Farley 


239, 241 


Reamer v. Nesrmth 


288 


V. Ford 


436 


Reardeu v. Minter 


571 


V. France 


554 


Reay v. Richardson 


197, 287 


V. Francis 


53 


Reece v. Rigby 


49 


V. Garbett 


193, 225, 451 


V. Trye 


240 


V. Gardiner 


257 


Reed i'. Anderson 


563 


V. Garner 


53, 219, 220 


V. Boardman 


427, 436 


V. Gazard 


249, 364 


V. Dick 


110 


V. Geering 


53 


V. Dickey 


109 


V. Gould 


231 


V. Jackson 19, 135, 


137, 139, 145 


V. Guinea 


437 


V. Kemp 


568 


V. Hall 


113 


V. Lamb 


507, 584 


V. Ilankins 


560 


V. Propr's of Locks 


,&c. 49,237 


V. Hartington 


534 


V. Rice 


323 


V. Hawks 


233 


Rees V. Overbaugh 


566 


V. Hearn 


222, 232 


V. Smith 


74 


V. Hewett 


156 


V. Walters 


142 


V. Hill 


365 


V. Williams 


572 


V. Hincks 


362 


Reese v. Harris 


43 


V. Holden 


462, 465 


Reeves v. Matthews 


360 


V. Holmes 


220, 458 


V. Slater 


69 


V. Hughes 


252 


Regicide's case 


256 


V. Jarvis 


220 


Regina v. Adderbury 


175 


V. Jones 


220, 241 


V. Appleby 


199 


V. Kitson 


562 


V. Arnold 


224, 225, 229 


V. Laugher 


222 


V. Atwood 


220 


V. Luckhurst 


220, 222 


V. Avery 


243 


V. Mainwearing 


38 a 


V. Baldry 


220 a 


V. Mansfield 


28 


V. Ball 


435, 444 


V. Megason 


102, 156 


V. Bannen 


382 


V. Milton 


130, 139 


V. Barber 


580 


V. Mooney 


158 


V. Bedford 


138 


V. Moore 


223 


V. Bedfordshire 


130 


V. Moreau 


184, 362, 537 


V. Berigan 


379 


V. Morse 


227 


V. Bickett 


381 


V. Mm-phy 432, 


435, 445, 576, 


V. Bird 


166 




580 


V. Birmingham 


109 


V. Newton 


92 


V. Blake 


111, 233 


V. Osborne 


102 


V. Bond 


65 


V. Overtou 


448 


V. Boulter 


257, 257 a 


V. Owen 


226 


V. Brightside 


139 


V. Pai'ker 


257 


V. Broadliempston 38 a 


V. Perkins 


157, 158 


V. Burke 


455 


V. Philpots 


436 


V. Butler 


218, 227 


V. Pikesley 


224, 225 


V. Caldwell 


580 


V. Plummet 


166 


V. Cavendish 


81c 


V. Povey 


488 


V. Champney 


257 


V. Reason 


220 


V. Chapman 


435 


V. Reeve 


222 


V. Child 


167 


V. Roberts 


257 


V. Clay 


51 


V. Roden 


53 


V. Coote 


34 


V. Rowton 


54, 65 


V. Cotton 


53 


V. Shcllard 


462, 463, 465 


V. Cranage 


02 


V. Sloman 


319 


V. Dent 


488 


V. Spicer 


65 


V. Drew 


220 a 


V. Stainforth 


38 a 


V. Dun combe 


4G3 


V. Stapleton 


28 


V. Dyke 


381 


V. Steele 


158 


V. Esdaile 


584 


V. St. George 


462 



INDEX TO CASES CITED. 



Ixi 



Regina v. St. Mary 

V. Stoke 

V. Taylor 

V. Totness 

V. Vernon 

V. Vickery 

V. Vincent 

V. Weller 

V. Wheeley 

V. "Williams 

V. AVink 

V. AVooldale 

V. "Worth 

V. Yates 
Regnell i'. Sprye 
Reid V. Battia 

V. Margison 
Reilly v. Fitzgerald 
Reitenback v. Reitenback 
Remou v. Hayward 



116 
292 
449, 463 
38 a 
222 

83 
102 
227 
226 
335 
102 

69 

115, 147, 150 

257 

210 

89 

508 

131 

134, 233 

280 



Renner v. Bank of Columbia 84, 292 

Respublica v. Davis 187 

V. Gibbs 456 

V. Keating 414 

V. McCarty 218, 224 

V. Ross 362 

Revett V. Braham 76, 580 

Revis V. Smith 452 

Rex V. Addis 381 

V. Aikles 484, 493 

V. Algood 473, 475 

V. Allison 86 

V. All Saints 38 a, 342 

V. Almon 36, 234 

V. Antrobus 138 
V. Appleby 199, 217, 233 

V. Arundel 6, 37 

V. Ashton 158, 162 

V. Atkins 195 

V. Atwood 380 

V. Babb 474 

V. Baker 53, 156, 102 

V. Ball 53, 224, 227 

V. Barnard 380, 459 

V. Barnes 195, 518 

V. Barrett 40 

V. Bartlett 199, 213 

V. Bath wick 342, 570 

V. Beardmore 319 

V. Bellamy 508 

V. Benson 38 a, 82, 512 

V. Bevan 403 

V. Bishop of Ely 474 

V. Bleasdale 53 

V. Bliss 138 

V. Bonner 158, 160 

V. Book 253 

V. Borrett 195 
V. Boston 362, 390, 414, 537 



Res V. Brandreth 
V. Brangam 
V. Brasie 
V. Brewer 
V. Briggs 
V. Britton 
V. Brommick 
V. Brooke 
V. Brown 
V. Bryan 
V. Burditt 
V. Burley 
V. Callahan 
V. Careinion 
V. Carty 
V. Castle ton 
V. Cator 
V. Chapman 
V. ChappeU 
V. Christie 
V. Clapham 
V. Clarke 
V. Clewes 
V. Cliviger 
V. Cole 
V. Collery 

V. Cook 

V. Cooper 

V. Cope 

V. Cotton 

V. Court 

V. Crockett 

V. Darley 

V. Davis 

V. Dawber 

V. De Beringer 

i;. Dean of St. Asaph 

V. Derrington 

V. Despard 

V. Dingley 

V. Dixon 

V. Doherty 

V. Dor an 

I'. Drummond 

V. Dunn 

V. Durham 

V. Edwards 

V. Egertou' 

V. Ellis 

V. Embden 

V. Enoch 



193, 
445, 



96, 372, 



90, 



54, 102, 210, 
201, 218, 221, 

53, 



218, 219, 



111 

471 
367 
244 
53 
226 
195 
447 
245 
21 
78 
379 
161 
375 
227 
558 
580 
435 
221 
158 
493 
469 
223 
342 
390 
432 
432 
221 
116 
131 
229 
158 
65 
373 
380 
491 
49 
229 
382 
379 
18, 36, 243 
343 
87 
157 
223 
380 
463 



225, 
6, 



449, 457, 
53, 



218, 22 



225 

512 
ooo 



ErisweU 99, 125, 138, 163, 

Esop 

Fagent 158, 

Fagg 

Farler 

Farringdon 

Farrington 

Fearshire 



ooo 

18 

159 

224 

382 

21 

34 

227 



Ixii 



INDEX TO CASES CITED. 



Kex V. Ferrers 

r. Ferry Frystone 

V. Fitzgerald 

V. Fletcher 

V. Ford 

V. Forsyth 

V. Foster 

V. Fox 

V. Francklin 

V. Frederick 

V. Fuller 

V. Fursey 

V. Gardiner 

V. Gardner 

V. Gay 

V. Gibbons 

V. Gilham 

V. Gilroy 

V. Gilsou 

V. Gisburn 

V. Goodere 



343 

125 

484, 493 

218, 363, 379 

373, 378 

479 

228 

418 

491 

335 

34 

84, 94 

374 

195, 479 

161 

222, 223, 248 

193, 229 

459 

87 

95, 422 

432 



Gordon (Lord George) 40, 83, 
92, 482 
V. Green 229 

V. Greene 225 

i;. Greepe 378 

V. Griffin 222, 232 

V. Grimwood 484 

V. Gully 6 

V. Gutch 36, 234 

V. Harborne 35 

V. Hardwick 112, 174, 175, 223, 
331 
V. Hardy 111, 256 

V. Hare 561 

V. Hargrave 380, 382 

V. Harringworth 569 

V. Harris 220 a, 227, 231, 257 
V. Harvey 34 

V. Hastings 380 

V. Hawkins 35, 80 

V. Hay 30 

V. Hayward 158 

V. Hazy 78, 82 

V. Hearne 218 

V. Hebden 536 

V. Higgins 218 

V. Ho(lgdon 458 

V. Hodgkiss 461 

V. Hodgson 54 

V. Iloll'ister 478 

V. Holt 479, 492 

V. Hood 335 

V. Hostmen of Newcastle 475 
r. Houghton 53 

V. Howard 83, 91, 92 

V. Howes 90, 111, 142 

V. Hube 86, 90 

V. Hacks 49, 65, 160 



Rex V. Plughes 28 

V. Hunt 28 

V. Hunter 49, 246 

V. Hutchinson 156 

V. Inhab. of Castle Morton 96 
V. Inhab. of Holy Trinity 87, 96 
V. Inhab. of Netherthong 333 
V. Jacobs 227 

V. Jagger 343 

V. Jarvis 78, 382 

V. Jenkins 222, 232 

V. Johnson 40 

V. Jones 6, 92, 218, 220, 222, 
232, 319, 380 
V. Jordan 28 

V. Justices of Buckingham 474 
V. Justices of Surrey 478 

V. Kea 253 

V. Kerne 195 

V. King 484, 493 

V. Kingston 223 

V. Kirdford 331 

V. Knill 257, 259 

V. KnoUys 6 

V. Lafone 363 

V. Laindon 285 

V. Leefe 65 

V. Lewis 225, 226, 451, 457, 458 



Lingate 

Lloyd 

Lloyd et al. 

Locker 

Long 

Long Buckby 

Lucas 

Luckup 

Luffe 

]\Iagill 

Mahew 

Martin 

Mashiter 

]\Iayor 

Mayor of London 

Mead 

Medley 

jVIerceron 

IMerchant Tailors 

]\Iiller 

]\Iill3 

Moore 

]\Iorgan 

jNIorris 

Morton 

INIosley 

Mudie 

Mutineers 

Neale 

Neville 

Noakea 



223 

229 

156 

335, 407 

53 

21, 38 a, 46 

473 

403 

5, 28, 253, 344 

229 

257 

54, 484, 493 

280 

536 

331 

156, 343 

36 

193 

474 

6 

220, 222 

381 

371, 578 

512 

220 a, 558 

158 

257 a 

363 

381 

209 

881 



INDEX TO CASES CITED. 



Ixiii 



Eex V. Northampton 
V. North Pendleton 


53 
493 


V. Nuneham Courtney 
V. Nutt 


125 
36 


V. Oldroyd 
V. Oweu 




442, 444 
28 


V. Page 
V. Paine 




558 
218 


V. Parker 


257 a, 469 


V. Parratt 




222 


V. Partridge 


34, 


220 222 


V. Pearce 




*" ' "53 


V. Pedler 




440 


V. Pegler 




451 


V. Phillips 
V. Picton 




28 
488 


V. Pike 




157, 367 


V. Pippitt 
V. Pitcher 




70 

458, 460 


V. Plumer 




40, 198 


t?. Pollard 




28 


V. Pountney 
V. Pratten 




222 223 


V. Pressly 
V. Priddle 




90, 228 
373 


V. Purnell 




474 


V. Ramsden 




437 


V. Rawden 




87 


V. Read 




227, 228 


V. Reading 




344, 457 


V. Reason et al. 


156, 


159, 161 


V. Rhoades 




484, 493 


V. Richards 




221 


V. Rivers 


224, 


225, 227 


V. Roberts 




53 


V. Robing 
V. Roddam 




458 
312 


V. Rogers 




78 


V. Rookwood 




461 


V. Rooney 
V. Row 




53 
223 


V. Rowland 




363 


V. Rowley 




165 


V. Rudd 


335 


386, 413 


V. Russell 




319, 559 


V. Ryton 
V. Sadler 




21 
311 


V. Saunders 




224 


V. Scaife 




159 


V. Scammonden 




285, 305 


V. Searle 




440 


V. Sergeant 




336, 343 


V. Sextons 




222 


V. Shaw 


225 


229, 237 


V. Shelley 83 

V. Shepherd 

V. Sheriff of Chester 


475, 478 
222 
473 


V. Sherman 




363 


V. Shipley 




18 



Rex V. Simons 45, 200, 224, 229 

V. Simpson 222, 223 

V. Slaney 451 

V. Slaughter 223 

V. Smith 53, 248, 885, 473, 482, 
508, 513 
V. Smith & Homage 224, 225 



V. Smithie 




215 


V. Spencer 




223, 512 


V. Spilsbuiy 158, 


160, 


227, 229 


V. Steptoe 




218 


V. Stevens 




39 


V. St. Martin's 




456, 437 


V. St. Mary Magdalen, 


Ber- 


mondsey 




333, 347 


V. Stone 




78 


17. St. Pancras 




531, 534 


V. Sutton S 


,28 


139, 491 


V. Swatkins 




222, 228 


V. Tanner 




41 


V. Tarrant 




90, 228 


V. Taylor 




222, 223 


V. Teal 


383 


458, 459 


V. Teasdale 




412 


V. Tellicote 




228 


V. Thanet 




364 


V. Thomas 




219, 223 


V. Thornton 222, 


225 


229, 230 


V. Tilly 




403 


V. Tower 




473 


V. Tubby 




225 


V. Tm-ner 


78, 79, 233 


V. Twining 




35,41 


V. Tyler 




218, 223 


V. Upchurch 




222, 223 


V. Upper Boddingi 


on 


239 


V. Upton Grey 




38 a 


V. Van ButcheU 




158, 160 


V. Vaughan 




432 


V. Verelst 




83, 92 


V. Virrier 




257 a 


V. Wade 




367 


V. Walker 




218, 225 


V. Walkley 




223 


V. Waller 




65 


V. Walter 


36 


227, 234 


V. Waters 




65 


V. Watkinson 




245 


V. Watson 40, 52, 65 


, 90, 101, 


111, 198,250, 


2.56, 


423, 449, 




459 


460, 469 


V. Webb 




225, 381 


r. Wells 




381 


V. Westbeer 




379 


V. Whiston 




38 a 


V. White 




367 


V. Whitley Lowe 




175 


V. Wickham 




285 


V. wnd 




225, 229 



Ixiv 



INDEX TO CASES CITED. 



Rex V. Wilde 6 


, 223, 229 


Riddle v. Moss 


402 


V. Wiley 


53 


Ridgway v. Bowman 


281 


V. Wilkes 


321 


V. Ewbank 


81 


V. Williams 3G7, 392 


, 403, 412 


Ridley v. Gyde 


108, 110 


V. Withers 


237, 479 


Rigg V. Curgenwen 


200, 210 


V. Woburn 175, 330, 


331, 353, 


Riggins V. Brown 


165 




452 


Riggs V. Taylor 


349 


V. Woodcock 156, 158, 


159, 161, 


Right V. Price 


272 




346 


Riley v. Gerrish 


281 


V. Woodfall 


34 


V. Gregg 


281 


V. Wriq-ht 


440 


V. Suydam 


185 


V. Wylie 


53 


Rindge v. Breck 


118 


V. 


34 


Ringgold V. Tyson 


385 


V. Yewin ■ 


450, 459 


Rioters (The) 


412 


V. Young 


382 


Ripley v. Babcock 


42 


Rev V. Simpson 


288 


V. Thompson 


395 


Repier j'. Hall 


212 


V. Warren 


6 


Reynolds v. Manning 


120, 201 


Ripon V. Davies 


245 


V. Rowley 


113, 246 


Ripple 11. Ripple 


505, 546 


V. Staines 


171 


Rishton v. Nesbitt 


196 


Rhine v. Ellen 


304 


Roach V. Garvan 


545 


V. Robinson 


165, 166 


V. Learned 


108 


Rhodes v. Ainsworth 


139, 405 


Rob V. Hackley 


469 


V. Bunch 


55 


Robb V. Starkey 


560 


V. Selim 


561 


Bobbins )'. King 


254, 334 


Ribbans v. Crickett 


205 


V. Otis 


58,68 


Ricard v. Williams 


17 


V. State 


156 


Ricardo v. Garcias 


546 


Roberts v. Adams 


392 


Rice V. Austin 


420 


V. Allatt 


451 


V. N. E. Marine Ins. Co. 444 


V. Doxon 


93 


V. Peet 


284 


V. Simpson 


246 


V. Rice 


239 


V. Tennell 


551 


V. Wilkins 


394 


V. Trawick 


392 


Rich V. Flanders 


177 


V. Whiting 


420 


V. Jackson 


265, 281 


Robert's case 


221, 222 


V. Topping 


399 


Robertson v. French 


278 


Richards v. Bassett 130, 


131, 137 


V. Lynch 


58 


V. Howard 


118 


V. Smith 


427 


V. jNIorgan 


553 


V. Stark 


440 


Richardson v. Allen 


443 


V. Teal 


6 


V. Anderson 


173, 487 


Robinson v. Batchelder 


304 


V. Carey 


116, 389 


V. Cushman 


211 


V. Churchill 


276 


V. Dana 


365 


V. Desborough 


260 a 


V. FitchburgR. B 


. Co. 113 


V. Dorr 


24 


V. Flight 


240 a 


V. Fell 


81 


V. Gilman 


479 


V. Freeman 


333, 427 


V. Hutchinson 


180, 462 


V. Hooper 


303 


V. Jones 


543 


V. Hunt 


387 


V. Markiss 


322 


V. Learned 


341 


V. Nahor 


27, 207 


V. Newcomb 


581 


V. Prescott 


505 


V. Watson 


288 


V. Robinson 


217 


V. Williams 


362 


V. Trull 


311,319 


Richmond v. Patterson 


484 


V. Yarrow 


196 


V. Thoinaston 


108 


Robinson's case 


53 


Rickards v. IVIurdock 


441 


Robison v. Alexander 


193 


Rickets v. Salwey 


63, 72 


V. Sweet 108, 


195, 527 


Rickman's case 


34, 53 


Robson V. Drummond 


281 


Riddick v. Leggatt 


301 


V. Kemp 181, 


240, 245 



INDEX TO CASES CITED. 



Ixv 



Roby V. Howard 76 

Rochester r. Chester 440 

Roden v. Ryde 575 

Rodman v. Forman 70 

V. Hoops 118 

RodriQ;uez v. Tadmire 55 

RodvveU V. Phillips 271 

V. Redge 35 

Roe V. Archb'p of York 265 

V. Davis 97 



V. Day 

V. Ferravs 
V. Ireland 
V, Jeffrey 
V. Lowe 
V. Rawlings 
V. Reade 
Roelker, in re 
Rogers v. Allen 
V. Berry 
V. Custance 
V. Dibble 
V. Pitcher 
V. Thompson 
V. Tm-ner 
V. "Wood 
Roger's case 
Rohan v. Hanson 



197, 201, 287 

2U2 

45 

130 

46 

21, 152, 570 

46 

319 

58, 71, 130, 143 

427 

562 

421 

207 

533 

395 

129, 136 

373 

304 



Rohrer v. Morningstar 385 

Rolf V. Dart 508 

Rolfe V. Rolfe 197 

Rollins V. Dyer 305 

Romero v. United States 6 

Ronkendorff v. Taylor 493 

Root V. Fellowes 532 

V. King 55, 482, 491 

Ropps V. Barker 286 

Roscoe V. Hale 174 

Rose V. Blakemore 451, 460 

V. Bryant 121 

V. Himely 5, 541 

V. Savory 118 

Roseboom v. Billington 121 

Rosenbaum v. State 54 

Rosevelt v. Marks 112 

Koss I'. AnsteU 6 

V. Bruce 89 

V. Buhler 364 

V. Espy 276 

V. Gould 49, 160, 425, 564 

V. Lapham 55 

V. Reddick 6 

V. Reed 40 

V. Rhoads 145 

Rothehoe v. Elton 396 

Rotherham i'. Green 71 

Rouch V. Gt. West. R. R. Co. 108 

Rowe V. Brenton 150, 151, 512, 517 

V. Grenfel 5 



Rowe V. Hasland 41 
Rowland v. Ashby 224, 227 
Rowlandson v. Wainwright 84 
Rowley v. Ball 558 
Rowntree v. Jacobs 26 
Rowt V. Kile 581 
Ruan V. Perry 54 
Rucker v. Palsgrave 205 
Rudd's case 222 
Rudge V. Ferguson 392 
Rugg V. Kingsmill 38 a 
Ruggles V. Buckner 323 
Ruloff V. People 217, 331 
Ruijiford v. Wood 331 
Runk V. Ten Eyck 114, 485 
Rush v. Flickwii-e 402 
V. Smith 445 
Rushforth V. Pembroke 164, 553 
Russel V. Werntx 287 
RusseU V. Beuckley 40 
V. Blake 395 
V. Coffin 437, 409 
f. Erwin 281 
V. Jackson 237, 240, 244 
V. Rider 437, 466 
Russian Steam Nav. Co. v, Silva 292 
Rust V. Baker 41 
Rustell V. Macquister 53 
Rustin's case 366 
Rutherford v. Rutherford 272 
Rutland & B. R. R. Co. v. Sim- 
son's Adm'r 329 
Ryan v. Sams 207 



S. 

Sabine v. Strong 323, 

Sackett v. Spencer 
Sage V. McAlpine 

V. Wilcox 
Sainthill v. Bound 
Salem v. Lynn 

V. Williams 
Salem Bank v. Gloucester Bank 
200, 
Salisbury v. Connecticut 
Salmon v. Ranee 

Saltar v. Applegate 20, 38 a 

Salte V. Thomas 484, 

Saltmarsh v. Tuthill 
Sample v. Frost 
Sampson v. Overton 
Sanborn v. Neilson 
Sanches v. People 434, 

Sanderson v. Collman 
V. Symonds 
Sandford v. Chase 316, 317, 

V. Hunt 



418 
440 
532 
268 
449 
108 
208 

208 
412 
392 
,40 
493 
385 
239 
506 
192 
442 
207 
565 
318 
75 



Ixvi 



INDEX TO CASES CITED. 



Sandford v. Raikes 






285 


Schuylkill, &c. Ins. Co. v. 


Mc- 




V. Remington 






245 


Creary 




23 


Sandilands v. Marsh 






112 


Scorell V. Boxall 




271 


Sangster v. Mazarredo 






177 


Scoresby v. Sparrow 




349 


Santissima Trinidad (The) 




4 


Scott V. Blanchard 




505 


Sargeant v, Sargeant 


172, 


190, 


353, 
354 


V. Brigham 
V. Burton 




118 
284 


Sargent v. Adams 




282 


297 


V. Clare SC 


,96 


203 


V. Fitzpatrick 






532 


V. Cleveland 




505 


V. Hampden 






239 


V. Hooper 




370 


Sartorious v. State 






432 


V. Hull 


75,76 


Sasscer v. Farmer's Bank 




5 


V. Jones 




89 


Satterthwaite v. Powell 






30 


V. Lifford 




426 


Saunders v. Hendrix 






338 


V. Lloyd 


354 


385 


V. Mills 






53 


V. Marshall 




1«0 


V. Wakefield 






268 


V. McLellan 391, 


399 


,401 


Saunderson v. Jackson 






268 


V. Pilkington 




546 


V. Judge 






40 


V. Waithman 


207 


571 


V. Piper 






2^7 


V. Wells 




416 


Sauniere v. Wode 






113 


Soovill V. Baldwin 




37 


Savage v. Balch 






180 


Scraggs V. The State 




104 


V. Smith 






5:» 


Scribner v. McLaughlin 




421 


Savignac v. Garrison 






49 


Scrimshire v. Scrimshire 




545 


Sawyer v. Baldwin 






484 


Seaman v. Hogeboom 




287 


V. Eifert 






55 


Searight v. Craighead 




112 


In re 






222 


Searle v. Lord Barrington 




122 


V. Maine Fire 


& Marine 




Sears i\ Brink 




268 


Ins. Co. 






541 


V. Dillingham 




347 


Saxton V. Johnston 






Ob 


Seaver v. Bradley 




392 


V. Nimms 






484 


V. Robinson 




318 


Sayer v. Wagstaff 






438 


Seavy v. Dearborn 


436 


443 


Sayles v. Briggs 






508 


Sebree v. Dorr 


84, 87 


Sayre v. Reynolds 






564 


Security Ins. Co. v. Fay 




22 


Say ward v. Stevens 






281 


Seddon v. Tutop 




532 


Scales 0. Jacob 






113 


Sedgwick v. Walkius 


340 


343 


V. Key 






41 


Seekright v. Bogan 




349 


Scammon v. Scammon 


1G8 


,190 


,314 


Selby V. Hills 




316 


Scanlan v. Wright 






571 


Selden v. INlyers 




284 


Schaeffer ;;. Kreitzer 






510 


V. Williams 




295 


Schall V. Miller 






167 


Selfe V. Isaacson 




432 


Scliaser v. State 






53 


Sells V. Hoare 




371 


Schauber v. Jackson 




46,47 


Selwood V. Mildway 




289 


Scheuck v. Mercer County 


Mut. 




Selwyn's case 




30 


Jus. Co. 






Ail 


Senior v. Armytage 




294 


Schi^rmerhorn v. Schermerhorn 


356 


Serchor v. Talbot 




69 


Schillinger v. MoCann 


2(J 


420 


421 


Sergeson v. Sealey 




556 


Schinotti v. Bumstead 






474 


Serle v. Serle 




397 


Sciimidt V. New York, 


&c. 


Ins. 




Settle V. AUi.son 


21 


506 


Co. 






55 


Sewell V. Buxton 




304 


Schnable v. Koehler 






409 


V. Evans 




575 


Schn(!rtznell v. Young 






506 


V. Stubbs 9i: 


,97 


422 


Schretler v. State 






225 


Seymour v. Beach 




519 


Scholes V. Hilton 






319 


V. Delancy 




284 


Scholl V. Miller 






166 


Seymour's case 




84 


Schooner Reeside 






292 


Shack V. Anthony 




303 


Schreger i\ Carden 






205 


Shafer v. Stonebreaker 




531 


Schricdly v. State 






53 


Shatfuer v. Commonwealth 




53 


Schuchardt v. Allen 






51a 


Sliailer v. Bumpstead 




108 


Schusler v. State 






13 a 


Shaller i;. Brand 




144 



INDEX TO CASES CITED. 



Ixvii 



Shamburg v. Commagere 385 
Shanklaiid v. City of Washing- 
ton 281 
Shankwiker v. Reading 3'22 
Shannon v. Coniniouwealth 423 
Shai'p V. Johnson 35 
V. Sharp 488 a 
Sharpe v. Bingley 437 
V. Lambe 560 
V. Sharpe 581 
Shaw V. Broom 190 
V. Charlestown 440 
V. Emery 461 
Sheafe v. Rowe 440 
Shean v. Philips 239 
Shearer t'. Harber 103, 183 
Shearman v. Aikens 116, 120, 147 
Shedden v. Attorney-General 131, 133 
V. Patrick 107, 133, 468 
Sheehy v. Mandeville 69, 539 a 
Sheen v. Bumpstead 63, 101 
Sheffield v. Page 284 a 
Shelby v. Smith 420 
V. The Governor, &c. 187 
V. Wright 23, 26 
Shelby^'ille v. Shelbyville 40 
Sheldon v. Benham 116, 280 
V. Clark 79 
Shelling v. Farmer 474 
Shelly V. Wright 531 
Shelton v. Barbour 164 
V. Cocke 112 
V. Deering 668 a 
V. Livius 271 
Shepard v. Palmer 416 
Shepherd v. Chewter 212 
V. Currie 38 
V. Little 26 
V. Tliompson 145 
Sherburne v. Shaw 268 
Sheridan v. Kirwin's case 90 
Sheriff v. Wilkes 174 
Sherman v. Akins 120 
V. Barnes 396 
V. Crosby 116, 120, 147, 
152 
V. Sherman 197 
Sherrington's case 221 
Sherwood o. Burr 17 
Shields v. Boucher 103 
Shiels V. AVest 565 
Shires v. Glasscock 272 
Shii-ley v. Shirley 268 
V. Todd 190 
Shoemaker v. Benedict t 174 
Shoenberger v. Zook 304 
Shoenbergher v. Hackman 37, 82, 84 
Shore v. Bedford 239, 243, 245 
©horey v. Hussey 443 



Short V, Lee 83, 115, 147, 149, 153, 

154, 155 

I'. Mercier 451 

Shortz I'. Unangst 558 

Shott V. Streatheld " 101 

Shotter v. Friend 260 a 

Shown V. Barr 506 

Shrewsbury (Carpenters of) v. 

Hayward 405 

Shrewsbury Peei-age 105, 106 

Shrouders v. Harper 558 

Shumway v. Ilolbrook 518 

V. Stillman 548 

Shuttleworth v. Bravo 392 

Sibley v. Waffle 239 

Sidney's case 576 

Sievewright v. Archibald 97 

Silk V. Humphreys 81 

Sillick V. Booth 30, 41 

Sills V. Brown 440, 537, 553 

Silver Lake Bank v. Harding 505 

Simmonds, in re 272 

Sinunons v. Bradford 27 

V. Simmons 257, 381 

Simpson v. Dendy 53 a 

V. Fogo 546 

V. Margitson 49, 277 

V. Morrison 112 

V. Norton 509 

V. Stackhouse 564 

V. Thoretou 479, 558 

Sims V. Kitchen 314 

V. Sims 558 

Sinclair v. Baggaley 40, 121 

V. Fraser 546 

V. Sinclair 545 

V. Stephenson 275, 284, 437, 

466, 560 

Singleton v. Barrett 90, 97 

Sisk V. Woodruff 489 

Sissons V. Dixon 35 

Skaife v. Jackson 172, 173, 174, 211 

Skilbeck v. Garbett 40 

Skinner v. Perot 374 

Skipp V. Hooke 5 

Skipworth v. Greene 26 

Slack V. Buchanan 192 

V. Moss 385 

Slade V. Teasdale 118 

Sladden v. Sergeant 463 

Slane Peerage (The) 104 

Slaney v. Wade 104, 134 

Slater v. Hodgson 570 

V. Lawson 174, 176 

Slatterie v. Pooley 96, 203 

Slaymaker v. Gundacker's Exr. 176 

V. Wilson 577 

Sleeper v. Van Middlesworth 431 

Sleght V. Rhmelander 280 



Ixviii 



INDEX TO CASES CITED. 



Sloan V. Soraers 


165 


166 


Smith V. Sandford 


117, 334 


Sloman v. Heme 


180 


181 


V. Scudder 


185 


Slubv V. Champlin 


572 


575 


V, Simmes 


180 


Small V. Leonard 




532 


V. Sleap 


560 


Smallcombe v. Bruges 




181 


V. Smith 


38, 107, 189 


Smart v. Kayner 




75 


V. Sparrow 


351, 421 


Smiley v. Dewey 




349 


V. State 


158 


Smith V. Arnold 




268 


V. Stickney 


469 


V. Barker 




68 


V. Surman 


271 


V. Battens 




121 


V. Taylor 


63, 195 


V. Beadnell 




193 


V. Thompson 


300 


V. Bell 




287 


V. Vincent 


176 


V. Blackham 




390 


V. AVard 


276 


V. Blagge 




506 


V. Westmoreland 


174 


V. Blakey 




116 


V. Whitaker 


43, 480, 488 a 


V. Blandy 




201 


V. Whittingham 


187 


V. Brandxam 




73 


V. Wilson 


49, 280, 292 


V. Brown 




305 


, V. Young 


90, 560 


V. Burnham 


200 


214 


Smith's case 


235 


V. Castles 


323 


457 


Smythe v. Banks 


316 


V. Chambers 




392 


Snell V. Moses 


58 


V, CofBn 


369 


370 


V. Westport 


329 


V. Commonwealth 




217 


Snellgi'ove v. Martin 


109, 190 


V. Cramer 




108 


Snow V. Batchelder 


75, 192, 421 


V. Crooker 


567, 


568 


V. Eastern Raih'oad Co. 348 


V. Crown 




30 


Snowball v. Goodricke 


180 


V. Cutter 




456 


Snyder v. Nations 


366 


V. Davies 




81 


V. Snyder 


334, 341, 434 


V. De Wruitz 




190 


Society, &c. v. Wheeler 


19 


V. Downs 


387, 


388 


V. Young 


46 


V. Dunbar 




568 


Solaman v. Cohen 


320 


V. Dunham 




568 


Solarete v. Melville 


388 


V. Fell 




239 


Solita V. i''arrow 


578 


V. Fenner 




581 


Solomon v. Dreschler 


79 


V. Gugerty 




440 


V. Solomon 


206 


V. Hyndman 




55 


Solomons v. Bank of England 81 a 


V. Jeffreys 




281 


Somes V. Skinner 


24 


V. Jeffries 




79 


Soiilden v. Van Rensselaer 430 


V. Knowelden 




73 


Soule's case 


343 


V. Knowlton 


41, 


540 


South V. Castles 


455 


V. Lane 




437 


Southampton (Mayor 


of) V. 


V. Ludlow 




112 


Graves 


474 


V. Lyon 




180 


Southard v. Rexford 


451 


V. INIaine 




189 


V. Wilson 


401, 422, 426 


V. Martin 




109 


Southey v. Nash 


432 


V. Moore 




78 


Southwick I'. Stevens 


36, 89, 234 


V. Morgan 179, 


436, 


469 


V. Hapgood 


281 


I'. Nicolls 




546 


Souvereye v. Arden 


361 


V. Nowells 




145 


Soward v. Leggatt 


74,81 


V. N. Y. C. R. R. Co 




48 


Sowell V. Champion 


358 


V. Palmer 96, 96 a 


171, 


203 


Spangle v. Jacoby 


401 


V. People 




462 


Sjiargo V. Brown 116, 


120, 147, 171 


V. Potter 


251, 


480 


Sparhawk v. Bullard 


38 


V. Powers 


109 


145 


Spaulding v. Hood 


74, 75 


V. Prager 


386 


409 


• V. A'incent 


488 


17. Prewitt 




145 


Spear v. Richardson 


434 


V. Price 


442, 


444 


Spears v. Burton 


41 


r. Prickett 




465 


V. Forrest 


462 


V. Redden 




513 


V. Ohio 


219 



INDEX TO CASES CITED. 



Ixix 



Speer v. Coate 

V. Plank Road Co. 
Spence v. Chodwick 
V. Saunders 
V. Stewart 
Spenceley v. DeWillott 
Spencer v. Billing 

V. Goulding 
V. Roper 
V. William 
Spicer v. Cooper 
Spiers v. Clay 

V. Morris 
V. Parker 
r.Willison 
Sprague v. Cadwell 

V. Litherberry 
V. Oakes 



145 

480 
488 
118 
317 
449, 455 

93 
416 

41 
521 
280 

26 

120 

19,78 

87 
462 

19 
532 



Spring Garden Ins. Co. v. Riley 438 

Spring t'. Lovett 281 

Springstein v. Field 55 

Sprowl V. Lawrence 5 

Spurr V. Pearson 389 

V. Trimble 41 

Stables v. Eley 208 

Stackpole v. Arnold 212, 275, 281, 305 

Stacy V. Blake 179 

Stafford v. Clark 631, 532 

V. Rice 385 

Stafford's (Ld.) case 235, 255 

Stafford Bank v. Cornell 416 

Stainer v. Droitwitch 497 

Stall V. Catskill Bank 387, 430 

Stammers v. Dixon 293 

Stamper v. Griffin 463 

Standage v. Creighton 186 

Standen v. Standen 301 

Stanley v. White 147, 197 

Stansfi'eld v. Levy 76 

Stanton v. Wilson 334 

Staples i: Goodrich 532 

Stapleton v. Nowell 205 

Stapylton v. Clough 99, 116, 120 

Stark V. Boswell 199 

Starkey v. People 161 a 

Starks v. The People 469 

Starkweather v. Loomis 505 

V. Matthews 420 

State (The) v. Adams 34 

V. Allen 580, 581 

V. Arnold 81 c 

V. Avery 440 

V. Bailey 457 

V. Bartlett 199, 451, 513 

V. Beard 23 

V. Boswell 461 

V. Brookshire 432 

V. Broughton 225 

V. Burlingham 335 



State (The) v. Caffey 70 

V. Cake ^ 485 
r. Cameron 156, 161, 331 

V. Campbell 164 

V. Candler 376 

V. Carney 163 

V. Carr 489, 581 

V. Cherry 469 

V. Cleaves 37 

V. demons 275 

V. Coatney 349 

V. Colwell 436 

V. Cornish 160 

V. Cowan 220 

V. Crawford 81 c 

V. Croteau 49 

V. Crowell 79 

V. Davidson 102, 175 

V. Davis 343, 462 

V. De WoH 366 

V. Dili 319 

V. Dunwell 6 

V. Ferguson 160 

V. Foster 362 
V. Freeman 220, 220 a, 

, 252 a 

V. Garrett 254 a 

V. German 217 

V. Grant 219 

V. Harman 219 

V. Hays 37 

V. Hay ward 257 

V. Hinchman 513, 540 

V. Hodge 34, 49 

V. Hooker 165 
V. Howard 102, 103, 160 

V. Isham 502 

V. Jackson 65 

V. Jolly 337 
V. Jones 81 c, 254 a 

V. K 451 

V. Keeler 217 

V. Kirby 223 

V. Knapp 37 

V. Knight 18 

V. Lawrence 331 

V. Lewis 20 

V. Litchfield 248, 380 

V. Littlefield 171, 195 

V. Lull 436 

r. Mahon 218 

V. McAlister 51 a, 306 
V. McDonnell 18, 34, 49 

V. McKean 382 

V. McLoud 164 

V. ]\lolier 257 

V. Mori'ison 79 

V, NeiU 344 

V. Norris 444 



Ixx 



IXDEX TO CASES CITED. 



State (The) v. O'Connor 


481 


r. Ola 


451 


r. O'Xeil 


37 


V. Parish 


227 


I'. Patterson 18, 


159, 449, 




456 


r. Peace 


156 


V. Pettaway 


344 


V. Pierce 


49 


V. Pike 34, 49, 


81 c, 440 


V. PoU 


158, 160 


V. Powers 


6 


V. Kawls 


199, 437 


V. Reed 


462 


V. Ridgely 


375, 376 


V. Roberts 


221 


V. Rood 


488 


V. Rowe 


469 


V. Sater 


461 


V. Shackford 


53 


V. Shearer 


79 


V. Shellidy 


108 


V. Shelton 


156 


V. Sherborn 


440 


V. Simmons 


414 


V. Snow 


49 


V. Soper 


233 


V. SpaiTow 


432 


I'. Stade 


489, 505 


V. Stanton 


414 


V. Staples 


37 


V. Stinson 


370 


V. Thibeau 


233 


V. Thomason 


157, 469 


V. Tilghman 


49, 159 


V. Tirrell 


156, 162 


V. Tuesday 


161 


V. Upham 


37 


V. Vaigneur 


221 


V. Vittum 


372 


V. Welch 


342 


r, Wentworth 


229 


V. AVhisenhurst 


371 


V. Whittier 


367 


r. AVilliams 


0, 37 


V. "Worthing 


335, 363 


St. Clair v. Shale 


109 


Stead V. Ileaton 


150 


Steams v. Hall 


302, 304 


V. Ilendersass 


109 


V. Stearns 


528 


Stebbing v. Spicer 


38 


Stebbins ik Sackett 


422, 423 


Steed V. Oliver 


361 


Steel V. Prickett 


130 


Steele v. Smith 


548 


V. Stewart 


230 


V. AVorthington 


26 


Steers i". Cawardiue 


397 



Stein V. Bowman 19, 334, 337 

c. R. R. Co. 108 

V. Weidman 254 

Steinkellen v. Newton 88, 438 

Steinmetz r. Cm-rie 430 

Stephen v. State . 5 

Stephens v. Foster 466 

V. Vroman 96, 200, 202 

V. Winn 268 

Stephenson v. Bannister 506 

Sterling i\ Potts 558 

Stern v. R. R. Co., C. C. P. 

Phila. 180 

Sterrett v. Bull 117 

Stevens v. McXamara 41 

IK Pin nay 89 

V. Taft 20 

V. Thacker 184 

V. AVests 38 

Stevens' Hospital v. Dyas 564 

Stevenson v. JNIudgett 429 

V. Nevinson 505 

Stewart v. Alison 498 

V. Cauty 49 

r. Doughty 271 

V. Huntington Bank 332 

V. Kipp 392, 409 

V. Saybrook 331 

Stewartson v. AVatts 113 

St. George v. St. Margaret 28, 40 

Stiles V. Eastman 259 

V. The Western Railroad 

Co. 110, 113 
Still V. Hoste 289 
Stimmel v. Underwood 387, 388 
Stitt V. Huidekoper 74 
St. ]\Iary's College v. Attorney- 
General 46 
Stobart v. Diyden 126 
Stockbridge v. W. Stockbridge 21 
Stockdale v. Hansard 6 
V. Young 558 
Stockfleth V. Be Tastet 193 
Stockham r. Jones 358 
Stockton V. Demuth 113, 442, 443 
Stoddard v. Doane 174 
r. Palmer 56 
Stoddart i\ Palmer 70 
V. Manning 452 
Stoever v. AA'hitmau 280 
Stokes V. Dawes 104, 556 
r. People 18 
r. State 461 
V. Stokes 115, 147 
Stonard v. Diinkin 207 
Stone V. IVihh 350 
V. 151ackburne 421 
r. ("lark 293, 30l 
V. Crocker 471 



INDEX TO CASES CITED. 



Ixxi 



518 
280 
56, 68 
283 
200 
385 
55 
287 
364, 386 
485 
346 
28-2 
266 
288 
485 
288 
569 
196 
205 
513 
73 
284 
457 
421 
451 
302 
252 a 
293 
572 
577 
Straton v. Rastall 207, 212, 305 

Streeter v. Bartlett 569 

Strickler v. Todd 17 

Strode v. McGowan 35 

V. Winchester 47, 266 

Strong V. Bradley 513 

Strother v. Barr 87, 96 

Strutt V. Bovingdon 531 

Studdy V. Sanders 210, 507 

Stukeley v. Butler 60, 301 

Stump V. Napier 385 

Sturdy v. Arnaud 303 

Sturge V. Buchanan 116, 201 

Sturm I'. Jeffries 562 

Sullivan r. Kelley 28 

Summers v. jNloseley 445 

Summevsett r. Adamson 203 

Sumner v. Child 17 

V. Sebec 484 

V. Williams 101 

Sussex (Earl of) v. Temple 189 

Sussex Peerage case 99, 104, 147 

Sutton V. Bishop 413 

V. Davenport 37 

V. Kettell 305 

V. Sadler 42 

Suydam v. Jones 302 

Swain v. Lewis 561 

Swallow V. Beaumont 58, 66, 68 



Stone V. Forsyth 

V. Hubbard 

V. Knowltoa 

V. MetcaH 

V. Ramsay 

V. Vance 

V. Varney 
Stoner's appeal 
Stoner i;. Byron 

V. EUis 
Stoop's case 
Stoops V. Smith 
Storer v. Batson 

V. Elliot Fire Ins. Co. 

V. EUis 

V. Freeman 
Storey v. Lovett 
Storr et al. v. Scott 

V. Finnis 
Story V. Kimball 

V. Watson 
Stouffer V. Latshaw 
Stout V. Russell 

V. Wood 
Stover V. People 
Stowell V. Robinson 
Straker v. Graham 
Stralding v. Morgan 
Strange v. Dashwood 
Stranger v. Searle 



Sweeny v. Prom. L. Ins. Co. 207 

Sweet V. Lee 282, 299 

V. Shei-man 469 

Sweigart v. Berk 529 

Swift V. Bennett 116 

V. Dean 421 

V. Eyi'es 301 

V. Mass. Mut. Life Ins. 

Co. 108 
V. Stevens 558 
Swing V. Sparks 118 
Swinnerton v. Marquis of Staf- 
ford 21, 142, 485 
Swire v. Bell 572 
Sybra v. AVhite 183 
Syers v. Jonas 293 
Sykes v. Dunbar 252 
Sylvester v. Crapo 190 
SjTnmons v. Knox 60 
Symonds v. Carr 66 
V. Lloyd 292 



T. 

Talbot V. Clark 

V. Seeman 
Tallman v. Dutcher 
Tarns V. Bullitt 
Taney v. Kemp 
Tanner v. Taylor 
Tannett's case 
Taplin v. Atty 
Tappan v. Abbott 
Tarleton v. Tarleton 



521 

487, 491 
421, 426 
51 a 
452 
437 
65 
560 
197 
543 



Taunton Bank i'. Richardson 349 

Tawney v. Crowther 268 

Tayloe.v. Riggs 82, 349 
Taylor v. Bank of Alexandria 489 

V. Bank of Illinois 489 

V. Barclay 4, 5, 6 

V. Beck 385 

V. Blacklow 240 

V. Briggs 278, 279, 292 

V. Bryden 548 

V. Cook 139 

V. Croker 196, 207 

V. Diplock 30 

V. Dundass 521 

V. Foster 186, 239 

V. Graham 6 

V. Henry 484 

In re 107, 108 

V. Johnson 565 

V. Lawson 432 

V. Luther 385 

r. Moseley 564 

V. Ross 268 

r. Sayre 281 



Ixxii 



INDEX TO CASES CITED. 



Taylor v. Tucker 
V. Weld 
V. Williams 
V. Willans 
Teachart v. People 
Teal V. Auty 
Teall V. Van Wyck 
Teese v. Huntington 
Tempest v. Kilner 
Templeton v. Morgan 
Tenbrook v. Johnson 
Tennant v. Hamilton 
V. Strachan 
Tennery v. Pippinger 



118 

284 

319 

49, 101, 186 

225 

271 

572 

2,461 

267 

6 

118 

449 

392 

81c 



Tennessee (Bank of) v. Cowan 115 

Tenny v. Evans 179 

Terrill v. Beecher 118 
Terrett v. Taylor 23, 24, 331 

Terry v. Belcher 337 

Tewksbury v. Bricknell 72 

Texas v. Chiles 329 

Texira v. Evans 508 a 

Thallhimer V. BrinckerhofE 113 

Tliayer v. Crossman 385, 401 

V. Stearns 484 

V. Thayer 53 

Theakston v. Marson 260 a 

Thelluson v. Cosling 491 

Theobald v. Tregott 416, 417 
The Reformed Dutch Church v. 

Ten Eyck 126 

Thomas & Henry v. U. States 323 

Thomas Jefferson (The) 6 

Thomas v. Ainsley 96 

V. Cummins 319 

V. David 432, 450 

V. Dyott 118 

V. Graves . 260 a 

V. Hargrave 341 

V. Jenkins 139 

V. Ketteriche 550 

V. Newton 451 

V. Robinson 505 

V. Tanner 506 

V. Thomas 197, 289, 291 

V. Turnley 575 

Thomas's case 228 

Thompson v. Armstrong 389 

V. Austen 192, 201 

V. Bullock 144 

V. Davenport 196 

V. Donaldson 550 

V. Freeman 102, 341 

V. Ketchum 281 

V. lyockwood 284 

V. JMonrow 488 a 

V. Musser 489 

V. Rol)ert3 531 

V. State 469 



Thompson v. Stevens 


120 


152 


V. Stewart 


5 


514 


V. Travis 




558 


V. Whitman 




540 


Thompson's case 




220 


Thomson v. Bell 




284 


Thorington v. Smith 




282 


Thorndike v. Boston 




108 


V. Richards 




301 


Thornes v. White 




310 


Thornton v. BlaisdeU 


256 


356 


V. Jones 




66 



r. Royal Ex. Ass. Co. 440 

V. Wykes 69 

Thornton's case 220, 222 

Thorpe v. Barber 357 

V. Cooper 532 

V. Gisbimie 577 

Throgmorton v. Walton 41, 81 

Thurman v. Cameron 573 

Thurston v. Masterson 21 

V. Whitney 369 

Tibeau v. Tibeau 568 

Tickel V. Short 194 

Tiernan v. Jackson 172 

Tiley v. Cowling 195, 527 

Tilghman v. Fisher 196 
Tillotson V. Warner 501, 508, 509 

Tillson V. Moulton 296 a 

V. Smith 296 a 
Tillou V. Clinton, &c. Ins. Co. 564 

Tilton V. Beecher 37, 334 

Timlay v. Porter 319 

Tindall, in re 41 

Tinkham v. Arnold 17 

Tinkler v. Walpole 494 

Tinkler's case 157, 158 

Tinn v. Wharf Co. 37 

Tisdale v. Conn. Ins. Co. 41 

V. Conn. L. Ins. Co. 550 

Titford (,'. Knott 581 

Title V. Grevett 384 

Titlow c. Titlow 42 

Titus y. Ash 06,461,462 

Tison V. Smith 6 

Tobin V. Shaw 37, 558 

Tod V. Earl of Winchelsea 163, 272 

11. Stafford 385 

Todernier v. Aspinwall 40 

Tolman v. Emerson 142, 144 

Tome V. Park, Br. R. R. 581 

Tomkies v. Reynolds 108 

Tomlinson v. Borst 118 

Tompkins v. Ashby • 551 

V. A ttor.- General 484 

V. Curtis 430 

I'. Phillips 207 

V. Saltmarsh 108 

Tong's case 233 



INDEX TO CASES CITED. 



Ixxiii 



Tooker v. D. of Beaufort 6 

Toomer v. Gadsden 117 

Topham v. McGregor 93, 437, 438 

Tousley V. Barry 190 

Towle V. Blake 118 

Town V. Xeedham 421 

Townley v. Woolley 118 

Tbwns V. Alford ^ 435 

Townsend v. Bush 379, 385 

V. Downing 391,395 

V. Graves 54 

V. Pepperell 115 

V. The State 49 

V. Weld 281 

Tracy v. Peerage 581 

Tracy Peerage Case 440 

Trant's case 160 

Travis v. January 246 

Treat v. Strickland 109 

Tregany v. Fletcher 6 

Trelawney v. Coleman 40, 102 

V. Thomas 387 

Tremain v. Barrett 310 

V. Edwards 118 

Trevivan v. Lawrence 22, 23, 531 

Tripp V. Gery 86 

Trischet v. Hamilton Ins. Co. 463 

Trotter v. Mills 502 

Trowbridge v. Baker 195 

TroweU v. Castle 511, 564 

Trowter's case 161 

Truslove v. Bm-ton 186 

Trustees, &c. v. Bledsoe 114 

V. Peaslee 290, 291 

Trustees Ep. Ch. Newbern v. 

Ti-ustees Newbern Acad. 21 

Truwhitt v. Lambert 89 

Tucker v. Barrow 193 

V. Mass. Cent R. R. 440 

V. MaxweU 212, 305 

V. Peaslee 51a 

V. State 6 

V. Tucker 75 

V. Welsh 89, 462 

Tufts V. Hayes 207 

TuUis V. Kidd 440 

Tullock V. Dunn 176 

Turner v. Ambler 49 

V. Austin 394 

V. Coe 421 

V. Crisp 121 

V. Eyles 56 

V. Lazarus 356 

V. Pearte 421 

V. Twing 118 

V. Waddington 506 

V. Yates 182, 560 

Tumey v. The State 434 

Turquand v. Knight 239 



Tuttle V. Brown 
Tutton V. Drake 
Tuzzle V. Barclay 
Twambly v. Henley 
Twiss V. Baldwin 
Tyler f. Carlton 
V. timer 
V. Wilkinson 
Tyer's case 
Tyrwhitt v. Wynne 



113 

497 

51a 

384, 397 

60, 64 

26 

180, 394, 539 

17 

65 

584 



U. 

Udderzook's case 6, 581 

Ulen V. Kittredge 269 

Ulmer v. Leland 78 

UnderhiU v. Wilson 180 

Underwood v. McVeigh 49 

V. Wing 30 

Union Bank v. Knapp 118, 168, 368, 

474 
V. Owen 430 

Union Mut. Ins. Co. v. Wilkin- 
son 281 
Unis V. Charlton's Adm. 462 
United States v. Amedy 489 
V. Anthony 49 
V. Batiste 49, 97 
V. Benner 479 
V. Breed 280 
V. Britton 65, 84 
V. Buford 73, 498 
V. Burns 5, 6 
V. Cantrill 300 
V. Castro 142, 143, 485 
V. Chapman 221 
V. Cuslunan 539 a 
V. Edme 316 
V. Flowery 51 a 
V. Gibert 13 a, 84, 233, 
495 
V. Gooding 233 
V. Hau- Pencils 241 
V. Hanway 256 
V. Hayward 79, 80 
V. Johns 4, 485, 489 
V. King 5, 6 
V. Leffier 284, 385 
V. Macomb 164, 165 
V. McXeal 65, 70 
V. Messman 581 
f . Mitchell 479 
V. Moore 311 
V. Moses 250 
V. Murphy 350, 412 
V. Xelson 368 
V. Xott 219 
V. Palmer 4 



Ixxiv 



INDEX TO CASES CITED. 



United States v. Percheman 485 

V. Porter 65 

r. Reyburn 82, 83, 92 

r. Reynes 6 

V. Smith 430 

V. Spaulding 566 

r. Sutter 84 

V. Teschmaker 6 

V. Van Sickle 461 

V. Wagner 4 

V. Wigging 33 

V. Wilson 412 

r. Wood 165, 257, 258 

U. S. Bank v. Corcoran 2 

V. Dandridge 21 

V. Dunn 40, 83 

V. Glass Ware 385 

V. Johnson 489 

V. La Vengeance 



V. Stearns 
Utica (Bk. of) v. Hillard 



416 

385, 474, 

559 

V. Mersereau 240, 243, 

422 

" V. SmaUey 430 

Utica Ins. Co. v. Cadwell 430 



V. 



Vacher v. Cocks 108 

Vail V. Lewis 60 

V. Nickerson 371 

V. Rice 260 a 

V. Smith 501 

V. Strong 197 

Vaillant v. Doderaead 243, 248 

Vaise v. Delaval 252^a 

Valentine v. Piper 575 

Vallance v. Dewar 292 

Valton V. National Loan, &c. Soc. 322 

Van Buren v. Cockbm-n 165 

V. AVells 51 a 

Vanbuskirk v. Mullock 489 

Vance v. Reardon 501 

V. Schuyler 573 

V andenheuvel V. U. Ins. Co. 543 

Vanderwerker v. The People 6 

Van Deusen v. Frink 429 

V. Slyck 358 

Vandine v. Burpee 440 

Van Dyke i'. Van Buren 46 

Vane's' (Sir Henry) case 256 

Vanhorne r. Dorrance 564 

Van Kuren i\ Parmelee 112 

Van Ness v. Packard 2 

Van Nuys r. Terhune 389 

Van OmVron v. Dowick 40, 479 

Vanqueliu c. Bonard 546 



Van Reimsdyk v. Kane 112, 174, 177, 

178 
Van Sandau v. Turner 6 

Van Shaack v. Stafford 427 

Van Valkenburg v. Rouk 284 

Van Vechten v. Greves 173 

Van Wyck v. Mcintosh 578 

Vunzant ;;. Kay 395 

Vass's case 160, 161 a 

Vasse V. Mifflin 559 

Vau i\ Corpe 
Vaughan v. Fitzgerald 

V. Hann 

V. Martin 

V. WorraU 
Vaughn v. Perrine 
Vaux Peerage Case (The) 
Vedder t'. Wilkina 
Venable's case 
Venning v. Shuttleworth 
Vent V. Pacey 



Verry v. Watkins 
Vicary v. Moore 
Vicary's case 
Villiers v. Villiers 
Vinal V. Burrill 
Vincent v. Cole 
Viney v. Bass 
Vining v. Baker 
VioletiJ. Patton 
Voce ('. Lawrence 
Volant V. Soyer 
Vooght V. AMnch 
Vosburg i\ Thayer 
Vose V. Handy 
V. ^lorton 
Vowels V. Miller 
V. Young 



361 

552 

214 

438 

421 

458 

497 

558 

257 a 

399 

240 a 

54 

303 

174 

84 

87, 112, 356 

88, 304 

62 

34 

268 

322 

246 

531 

118 

301 

523, 528 

60, 72 

103, 105, 334, 342 



Waddington v. Bristow 
V. Cousins 
Wadley v. Bayliss 
Wafer r. Ilempkin 
Wagers r. Dickey 
Waggoner r. Riclimond 
Wagner's case 
Wagstaff V. Wilson 
Wain L-. Warlters 
Waite ('. ]\Ierrill 
Wake V. Hartop 

V. Lock 
Wakefield v. Ross 
Wakefield's case 
Wakeley v. Hart 
WalcotV. Alleyn 
Walden v. Canfield 



278, 578 

573, 580 

293 

168 

165 

118 

6, 156, 162 

186 

268 

427 

284 a 

396, 421, 426 

328, 339, 369 

339, 343, 374 

358 

42 

6 



INDEX TO CASES CITED. 



Ixxv 



Walden v. Craig 

r. Sherburne 

Waldridge v. Kenison 

Waldrou v. Tattle 
I'. Ward 

Walker v. Broadstock 
V. Crawford 
V. Coimt^«s of 

champ 
V. Dunspaugh 
V. Ferrin 
V. Forbes 
V. Giles 
V. Hunter 
V. Kearney 



73 
112 

192 
130 
243 
109, 189 
284 
Beau- 

131 
435 
427 
480 
409 
49 
374 



V. Protection Ins. Co 

r. Sa'sv^'er 

V. Stephenson 

V. Wallcer 

V. Welch 

V. Wheatley 



V. Wildnian 
V. AVingfield 
V. Witter 
Walker's case 
Wall V. McN"amara 
Wallace v. Cook 
V. Rogers 
V. Small 
V. Townsend 
V. Twyman 
Waller v. School District 
WaUis V. Littell 

V. MiuTay 
Walsh V. Dart 
Walsingham (Ld.) v. 

ricke 
Walter v. BoUman 
V. Hayues 
Walters v. Mace 
V. Rees 
V. Short 
Walton V. Coulson 
V. Green 
V. Shelley 
V. Tomlin 
V. Walton 
Wambough v. Shenk 
Wandless v. Cawthorne 
Ward V. Apprice 
V. Dulaney 
f. Fuller 
V. Hay don 
V. Howell 
V. Johnson 
V. Lewis 
V. Pomf ret 
V. Sharp 
r. The State 



440 
425 
54 
165 
66 
302 
237, 240 
485 
546 
189 
532 
484, 493 
305 
192 
86 
420 
84 
284 n 
559 
43 
, Good- 
240 a, 244 
117 
40 
04 
317 
564 
21 
110, 185, 341 
383, 385, 389 
356 
260 
41 
95, 422 
349 
35 
484 
357 
112 
539 
38 
155 
452 
161a 



Ward V. Wells 572 

V. Wilkinson 398 

Warde v. Warde 241 

Wardell v. Eden 173 

V. Fermor 572 

Wardle's case 65 

Ware v. Brookhouse 109 

V. Gay 81 c 
V. Havward Rubber Co. 292 
V. Ware 52, 77, 449, 462 

Waring i'. Waring 365 

AVaruer v. Harder 485 

V. Price 116, 120 

Warren v. Anderson 57 o 

V. Charlestown 331 

V. Comings 531, 532 

V. Flagg 505 
17. Greenville 119, 147, 149, 
150, 1.54 

V. Lusk 488 a 

V. Nichols 165 

V. Warren 40 

V. Wheeler 277 

Warrick v. Queen's College 129 
Warrickshall's case 214, 215, 219, 231 

Warriner i'. Giles 484 

Warrington v. Early 568 

Warwick v. Bruce 271 

V. Foulkes 53 

Washburn v. Cuddihy 497 
Washington S. P. Co. v. Sickles 532 

Waterman v. Johnson 288, 301 

WatertowTi v. Cowen 175 
Watkins v. Holman 479, 480, 482 

V. Morgan 73 

V. Towner s 27 

Watson V. Blaine 26 

V. Brewster 104 

V. England 41 

V. Hay 6 

V. King 41, 186 

V. Lane 207 

V. McLaren 430 

V. Moore 55, 201 

V. Tarplev 49 

V. Threlkeid 27, 207 

V. Wace 204, 207 

Watts V. Friend 271 

V. Howard 118 

V, Kilburn 572 

V. Lawson 19- 

V. Thorpe 181 

Waugh V. Bussell 69, 567 

Wayman v. Hillard li^2 

WaVmell v. Read 284, 488 

Weakly t'.BeU 207 

Weall V. King 58, 04 

Weatherhead v. Sewell 288 

Weaver v. McElhenou 5 



Ixxvi 



INDEX TO CASES CITED. 



Webb V. Alexander 513 

V. Man. & Leeds R. R. Co. 440 
V. Pajre 310 

V. Smith 179, 248 

V. St. Lawrence 575 

Webber v. Eastern Railroad Co. 

441,540 

Webster v. Clark 118, 436 

V. Hodgkins 8P, 282 

V. Lee 447, 532 

V. Vickers 385 

V. "Webster 115 

V. Woodford 284 

Wedge V. Berkeley 49 

Wedgewood's case 484, 493 

AVeed v. Kellogg ISO, 322 

Weeks v. Lowerre 163 

V. Sparke 128. 129, 130, 136, 

137, 138, 145, 146 

Weems v. Disney 145 

We.giielin v. Weguelin 321 

Weidman v. Kohr 109, 189 

Weidner v. Schweigart 38 

Weiglyi'. Weir 26 

WelboVn's case 158, 160 

Welch V. Barrett 115, 116, 147 

V. ]Mandeville 173 

V. Seaborn 38 

Weld V. Nichols 539 

Welden v. Buck 423 

Welford v. Beezely 268 

Welland Canal Co. v. Hathaway 86, 

96, 203, 204 

Wellerr. Gov. Found. Hosp. 331, 333 

Wells y. Compton 195, 301, 527 a, 

539 

V. Fisher 339 

V. Fletcher 207, 339 

V. Greeley 23 

V. Jesus College 138 

r. Lane 333 

V. Porter 293 

V. Stevens 513 

V. Tucker 338 

Welsh V. Rogers 323 

Wendell v. Al>bott 145 

V. George 385 

Wentworth v. Lloyd 37, 240 

Wertz V. May 469 

West V. Baxendale 49 

V. Davis 97 

V. Randall 392 

V. State 35, 577 

V. Steward 568 a 

West Boylston c. Sterling 323 

Westlnn-y v. Aberdein 441 

West Cambridge v. Lexington 109 

Westfield V. ^Varren 107 

Weston V. Barker 173 



Weston V. Chamberlain 


281 


V. Emes 


281 


V. Penniman 


494 


Wetherbee v. Dunn 


6 


Wetmore v. MeH 


108 


"NMialey v. State 


37 


Whateley v. Menheim 


531 


Whatley v. Fearnley 


392 


Wheat V. State 


81c 


Wheater's case 


226 


Wheatley v. "VVilliams 


245 


Wheelden v. Wilson 


53, 329 


Wheeler v. Alderson 


101 


V. Hambright 


180 


V. Hatch 


437 


V. Hill 


237 


V. McCorrister 


189 


V. Moody 


6 


i". Webster 


488 a 


Wheeling's case 


217 


Wheelock v. Doolittle 


113 


Whelpdale's case 


284 


Whipple V. Foot 


271 


V. \^'alpole 


440 


Whitaker v. Bramson 


70 


V. Salisbury 


572 


V. Smith 


58 


Whitamore v. Waterhouse 


394, 427 


Whitbeck v. Whitbeck 


26 


Whitcher v. Shattuck 


101 


Whitcomb v. Whiting 


112, 174 


Whitcomb's case 


309 


White V. Ballou 


440 


V. Coatsworth 


532 


V. Crew 


260 


V. Everest 


452 


V. Foljambe 


46 


V. Hale 


112, 174 


V. Hawn 


371 


V. Hill 


358 


V. Judd 


310 



V. Lisle 130, 137, 138 

V. Parkin 303 

V. Patten 24 

V. Philbrick 533 

V. Proctor 269 

V. Sayer 294 

V. Trust. Brit. Museum 272 

V. Wilson 42, 58, 68, 81, 281 

AVhite's case 65, 217, 328, 365 

Whitehead v. Scott 89, 101 

V. Tattersall 184 

Whitehouse v. Atkinson 394, 420 

V. Bickford 145, 485, 570 

"WTiitehouse's case 343 

AVhitehouse v. Hemmant 584 

Whiteley v. Crowter 559 

Whitelocke v. Baker 103, 104, 131 

V. Musgrove 575 



INDEX TO CASES CITED. 



Ixxvii 



Wliitesell v. Crane 348 

Whiteside's appeal 41 

Whitfield V. CoUingwood 564 

Whitford v. Tutin 87 

Whitlock V. Ramsay 69 

Whitmarsh v. Angle 440 

V. AValker 271 

Whitmer v. Frye 508 

Whitmore v. S. Boston Iron Co. 292 

V. Wilks 347 

Whitney v. Bigelow 121 

V. Boardman 280 

V. Ferris 177 

V. Heywood 323 

Whiton V. Albany City Ins. Co. 479 

Whittaker v. Garnett 26 

V. Wisley 19 

Whittemore v. Brooks 572 

Whittier v. Franklin 55 

V. Smith 207 

'V\Tiittuck V. Waters 493 

Whitwell V. Scheer 73 

V. Wyer 201 

Whyman v. Garth 569 

Wickens v. Goatley 6 

Wickes V. Caulk 564 

Wicks V. Smallbroke 375 

Wiggin V. Lowell 333 

Wigglesworth v. Dallisou 294 

V. Steers 284 

Wike V. Lightner 461 

Wikoff's appeal 564 

Wilbur I'. Selden 115, 147, 163, 

165 

V. Strickland 232 

V. Wilbur 571 

Wilcocks V. Phillips 488 

Wilcox V. Emerson 275 

V. Smith 83 

Wilde V. Armsby 564 

Wilder v. Cowles 74 

Wiley V. Bean 572 

V. Moor 568 a 

Wilkins v. Stidger 197 

Wilkinson v. Johnson 566 

V. Lutwidge 196 

V. JNIorely 440 

V. Scott 26, 305 

V. Yale 323 

Willard v. Harvey 508 

V. Wickham 427 

Williams v. Amroyd 541 

V. Baldwin 254 

V. Bartholomew 207 

V. Bridges 180, 181 

V. Bryant 69 

V. Byrne 49 

V. Cheney 171, 195, 552 

V. CaUender 55 



Williams v. E. India Co. 35, 40, 78, 

80 

V. Eyton 20 

V. Geaves 115, 150, 151 

r. Gilman 288 

V. Goodwin 430 

V. Hing. &c. Turnp. Co. 78 

V. Junes 27, 182 

V. Johnson 342 

V. Mundie 240 

V. Ogle 65 

V. State 164 

V. Stevens 392 

V. Thomas 74, 192 

V. Van Tuyl 568 

V. Walbridge 385 

V. Walker 443 

V. Wetherbee 485 

V. Wilkes 502 

V. AVillard 165 

V. Williams 45, 200 

Williams's case 311 

Williamson v. Allison 51, 60, 63 

V. Henley 205 

V. Scott 212 

Willingham v. Matthews 316 

Willings V. Consequa 354 

Willis V. Barnard 102 

V. Jernegan 197 

V. McDole 558 

V. Quimby 104 

Willis's case 255 

Williston V. Smith 55 

Willoughby v. Willoughby 4, 5 

Wills V. Judd 354 

Wilmer v. Israel 118 

Wilson V. Allen 46 

V. Betts 144 

V. Boerem 156 

V. Bowie 89 

V. Butter 22 

V. Calvert 201 

V. Carnegie 195 

V. Conine 511 

V. Gary 409 

V. Goodin 118 

V. Hodges 41, 81 

V. McCuUough 434 

V. Niles 548 

V. Rastall 237, 239, 243, 247 

V. Rogers 473 

V. State 461 

V. Troup 237, 241 

V. Turner 27 

V. Wilson 118 

Wilson's case 225 

Wilton V. Girdlestone 521 

V. Webster 102 

Wiltzie V. Adamson 197, 198 



Ixxviii 



INDEX TO CASES CITED. 



Wiiians r. Dunham 511 

V. N. Y. & E. R. R. 440 

Winch V. Keeley 172 

Wiuchell V. Edwards 37 

Wing V. Abbott 84 

V. Angrave 30 

Winn V. Chamberlain 292, 293 

V. Patterson 21, 142 

Winnipiseogee Lake Co. v. Young 6 

AVinship v. Bank of U. S. 148,' 167 

Winslow V. Kimball 341 

"NVinsmoie v. Greenbank 183 

Wiusor v. Dillaway 118 

V. Pratt 273 

Winter v. Butt 467 

V. Wroot 102 

Wishart v. Downey 569 

Wishaw V. Barnes 408 

Withee v. Rowe 581 

Withers v. Atkinson 568 

V. Gillespy 563 

Withnell v. Gartliara 138, 293 

Witmer v. Schlatter 539 

Wltnash v. George 116, 150, 187 

Wogan V. Small 440 

Woicott c. Hall 55 

Wolf V. Washburn 498, 513 

V. Wyeth 165 

WoUey V. Brownhill 347 

Wood V. Braddick 112, 177 

V. Braynard 392 

V. Cooper 437 

V. Davis 524 

V. Drury 572 

V. Fitz 6 

V. Foster 109 

V. Hickok 260 a 

V. Jackson 529, 531 

V. Le Baron 532 

V. Mackinsoa 445 

V. Manu 461 

V. Xeale 317 

V. Pringle 76 

V. Watkinson 547 

V. Whiting 305 

Woodbeck v. Keller 255, 257 

Woodl)ri(lge v. Spooner 281 

Woodcock's case 158 

Woodcraft v. Kinaston 502 

Woodford V. Asliley 70 

Woodman v. Buchanan 53 

V. Coolbroth 571 

V. Lane 301 

Woodruff V. Taylor 546 

V. Westcott 190, 353 

V. Woodruff 527 a 

Woods V. Banks 113, 508 

I'. Keyes 165 

V. Saw in 287 



Woods V. Woods 41, 240 a 
Woodsides v. The State 156 
Woodstock (Bank of) v. Clark 108 
Woodville v. Barker 558 
Woodward v. Cotton 481 
V. Larking 211 
V. Newhail 197, 356 
V. Picket 268 
Woolam V. Hearn 276 
Woolway v. Rowe 190, 191 
Wooster v. Butler 145, 287 
V. Lyons 96 
AVorcester Co. Bank v. Dorches- 
ter, &c. Bank 81 a 
Worrall v. Jones 330, 353, 354, 356 
Worthington v. Hyler 300, 301 
Wright V. Barnard 5 
V. Beckett 444, 467 
V. Caldwell 348 
V. Court 111 
V. Crookes 281, 304 
V. Delafield 488 a 
V. Foster 74 
V. Hicks 462 
V. Howard 17 
V. Littler 156 
V. Morse 276 
V. Netherwood 30 
V. Phillips 6 
V. Sarmuda 30 
V. Sharp 118 
V. Tatham 82, 101, 108, 163, 
164, 535, 553, 584 
V. Willcox 469 
V. Wi-ight 272 
Wyatt V. Gore 251 
V. Hodson 174 
V. Lord Hertford 207 
Wyer r. Dorchester, &c. Bank 81 a 
Wylde's case 288 
Wyndhara v. Chetwynd 419 
Wynn v. Patterson 658 
Wynne v. T}T:whitt 150, 154, 570 



Y. 



Yabsley v. Doble 


180 


Yandes v. Lefavour 


112 


Yarborough v. Moss 


201 


Yardley v. Arnold 


421 


Yarley v. Turnock 


72 


Yates V. Pyra 


292 


V. Thompson 


49 


Yates's case 


257 


Yeates v. Pirn 


294 


Yoatman, ex parte 


238 


V. Dempsey 


319 


V. Hart 


51a 



INDEX TO CASES CITED. 



Ixxix 



Yeaton v. Fry 5, 414 

York V. Blott 399 

V. Gribble 402 

V. Pease 74 

York's case 18 

York, &c. R. R. Co. v. Winans 6 

Yoter V. Sanno 251 

Young V. Bairner 76, 385 

V. Black 5:32 

r. Chandler* 506 

V. Commonwealth 219 

V. Dearborn 165 

V. Honner 580 

V. Raincock 22 



Y"oung V. Richards 
V. Smith 
V. The Bank 

andria 
V. Wright 
Youqua v. Nixon 
Yrissarri v. Clement 



Zollicoffer v. Turney 
Zouch '-'. Clay 
Zouch Peer. 



341 

180 

of Alex- 

480, 489, 490 

27, 186 

304 

4 



452 

567, 568 
134 



This case is reported in 13 B. Mon. 252, and not as cited in note to section 506. 



PART I. 

OF THE NATURE AND PEINCIPLES 
OF EYIDENCE. 



TREATISE 



OK 



THE LAW OF EYIDENCE. 



PART I. 

OF THE NATURE AND PRINCIPLES OF EVIDENCE. 



CHAPTER I. 

PEELnnNAKY OBSERVATIONS. 

§ 1. Definitions. The word EvroENCE, in legal acceptation, 
includes all the means by which any alleged matter of fact, the 
truth of which is submitted to investigation, is established or dis- 
proved.i This term, and the word proofs are often used indiffer- 
ently, as synonymous with each other ; but the latter is applied 
by the most accurate logicians, to the effect of evidence, and not 
to the medium by which truth is established.^ None but mathe- 
matical truth is susceptible of that high degree of evidence, called 
demonstration^ which excludes all possibility of error, and which, 
therefore, may reasonably be required in support of every mathe- 
matical deduction. Matters of fact are proved by inoral evidence 
alone ; by which is meant, not only that kind of evidence which 
is employed on subjects connected with moral conduct, but all the 
evidence which is not obtained either from intuition, or from 
demonstration. In the ordinary affairs of life, we do not require 
demonstrative evidence, because it is not consistent with the 
nature of the subject, and to insist upon it would be unreason- 

1 See Wills on Circumstantial Evid. * Whately's Logic, b. 4, ch. 3, § 1. 

2; 1 Stark. Evid. 10; 1 Phil. Evid. 1. 



4 LAW OF EVIDENCE [PAET I. 

able and absurd. The most that can be affirmed of such things 
is, that there is no reasonable doubt concerning them.^ The true 
question^ therefore, in trials of fact, is not whether it is possible 
that the testimony may be false, but whether there is sufficient 
'probability of its truth ; that is, whether the facts are shown by 
competent and satisfactory evidence. Things established by 
competent and satisfactory evidence are said to be proved. 

§ 2. Competent, satisfactory, and cumulative. By competent evi- 
dence is meant that which the very nature of the tiling to be 
proved requires, as the fit and appropriate proof in the particular 
case, such as the production of a writing, where its contents are 
the subject of inquiry. By satisfactory evidence^ which is some- 
times called sufficient evidence, is intended that amount of proof, 
which ordinarily satisfies an unprejudiced mind, beyond reason- 
able doubt. The circumstances which will amount to this degree 
of proof can never be previously defined ; the only legal test of 
which they are susceptible is their sufficiency to satisfy the mind 
and conscience of a common man ; and so to convince him, that 
he would venture to act upon that conviction, in matters of the 
highest concern and importance to his own interest.^ Questions 
respecting the competency and admissibility of evidence are 
entirely distinct from those which respect its sufficiency or effect ; 
the former being exclusively within the province of the court ; the 
latter belonging exclusively to the jury.^ Cumulative evidence is 
evidence of the same kind, to the same point. Thus, if a fact is 
attempted to be proved by the verbal admission of the party, evi- 
dence of another verbal admission of the same fact is cumulative ; 
but evidence of other circumstances, tending to establish the fact, 
is not.^ 

§ 3. Division of the subject. This branch of the law may be 
considered under three general heads, namely : First, The Nature 

' See Gambier's Guide to the Study of there is occasion to apply them, they are 

Moral Evidence, p. 121. Even of matlie- found to lead to just conclusions. Id. 

matical trutlis, tliis writer justly remarks, 196. 

that, though capable of demonstration, 2 \ Stark. Evid. 514. [This is the rule 

they are admitted by most men solely on applicable in criminal cases. See jwst, 

the moral evidence of general notoriety, vol. iii. § 29. But, by universal consent, 

For most men arc neither able themselves a preponderance of evidence is suflicicnt 

to understand mathematical demonstra- in civil cases. See post, § 13 a.] 
tions, nor have they, ordinarily, for their ' Columbian Ins. Co. v. Lawrence, 2 

truth, the testimony of those who do Pet. 25, 44; Bank United States v. Cov- 

understand them ; but, finding them gen- coran. Id. 121, 133; Van Ness v. Pacard, 

erally believed in the world, they also Id. 137, 149 [Carpenters' Co. r. Hay ward, 

believe them. Tlieir belief is afterwards 1 Doug. 375. See also ;^os^ § 320]. 
confirmed by experience ; for, whenever * Parker v. Hardy, 24 Pick. 246, 248. 



CHAP. I.] PEELEVECSTAEY OBSERVATIONS. 5 

and Principles of Evidence ; — Secondly^ The Object of Evidence, 
and the Rules which govern in the production of testimony ; — 
And Thirdly^ The Means of Proof, or the Instruments, by which 
facts are established. This order will be followed in farther 
treating this subject. But, before we proceed, it will be proper 
first to consider what things courts will, of themselves, take 
notice of, without proof. 



LAW OF EVIDENCE. * [PAUT I. 



CHAPTER II. 

OF THINGS JUDICIALLY TAKEN NOTICE OF, WITHOUT PEOOF. 

§ 4. Public functionaries, seals, lavrs, and acta of state. All civil- 
ized nations, being alike members of the great family of sovereign- 
ties, may well be supposed to recognize each other's existence, 
and general public and external relations. The usual and appro 
priate symbols of nationality and sovereignty are the national 
flag and seal. Every sovereign, therefore, recognizes, and, of 
course, the public tribunals and functionaries of every nation 
take notice of the existence and titles of all the other sovereign 
powers in the civilized world, their respective flags, and their 
seals of state. Public acts, decrees, and judgments, exemplified 
under this seal, are received as true and genuine, it being the 
highest evidence of their character.^ If, however, upon a civil 
war in any country, one part of the nation shall separate itself 
from the other, and establish for itself an independent govern- 
ment, the newly formed nation cannot without proof be recognized 
as such, by the judicial tribunals of other nations, until it has 
been acknowledged by the sovereign power under which those 
tribunals are constituted ; ^ the first act of recognition belonging 
to the executive function.^ But though the seal of the new power, 
prior to such acknowledgment, is not permitted to prove itself, 
yet it may be proved as a fact by other competent testimony.^ 
And the existence of such unacknowledged government or State 



1 Church j;. Ilubbart, 2 Cranch, 187, Ves. 347; United States v. Palmer, 3 
238; Griswold i-. Pitcairn, 2 Conn. 85, Wheat. 610, 034. 

90; United States c. Johns, 4 Dail. 410; » [Taylor v. Barclay, 2 Sim. 213.] 

The Santissima Trinidad, 7 Wheat. 273, * United States v. Palmer, 3 Wheat. 

335; Anon., 9 Mod. 00 ; Lincoln f. Bat- 010, 034; The Estrclla, 4 Wheat. 2!I8. 

telle, Wend. 475 [United States v. What is suflkicnt evidence to authenti- 

Wagner, 2 L. 11. (Ch. Ap.) 585]. It is cate, in the courts of this country, the 

held in New York that such seal, to be sentence or decree of the court of a for- 

recofrnized in the courts, must be a com- eign government, after the destruction 

mon-law seal, that is, an impression upon of such government, and while the coun- 

wax. Coit V. Milliken, 1 Denio, 376. try is possessed by the conqueror, re- 

2 City of Berne v. Bank of England, 9 mains undecided. Hatflcld r. Jameson, 

2 Munf. 53, 70, 71. 



CHAP. II.] THINGS -JUDICIALLY TAKEN NOTICE OF. 7 

may, in like manner, be proved ; the rule being, that if a body 
of persons assemble together to protect themselves, and support 
their own independence, make laws, and have courts of justice 
this is evidence of their being a state.^ 

§ 5. Law of Nations, Seals of Notaries, and Admiralty Courts, and 
all facts of common knowledge. In like manner, the Law of 
Nations, and the general customs and usages of merchants, as 
well as the public statutes and general laws and customs of their 
own country, as well ecclesiastical as civil, are recognized, with- 
out proof, by the courts of all civilized nations.^ The seal of a 
notary-public is also judicially taken notice of by the coutts, he 
being an officer recognized by the whole commercial world.^ 
Foreign Admiralty and Maritime Coui'ts, too, being the courts 
of the civilized world, and of co-ordinate jurisdiction, are judi- 
cially recognized everywhere ; and their seals need not be proved.* 
Neither is it necessary to prove things wliich must have hap- 
pened according to the ordmary course of nature ; ^ nor to prove 
the course of time, or of the heavenly bodies ; nor the ordinary 
pubhc fasts and festivals ; nor the coincidence of days of the 
week with days of the month ; ^ nor the meanmg of words in the 



1 Trissarri v. Clement, 2 C. & P. 
223, per Best, C. J. And see 1 Kent, 
Comra. 189; Grotius, De Jur. Bel. b. 3, 
c. 3, § 1. 

2 Ereskirie v. Murray, 2 Ld. Eaym. 
1542; Heineecius ad Pand. 1. 22, tit. 3, 
§ 119; 1 Bl. Comm. 75, 76, 85; Edie v. 
East India Co., 2 Burr. 1226, 1228 ; Chand- 
ler V. Grieves, 2 H. Bl. 606, n. ; Eex v. 
Sutton, 4 M. & S. 542; 6 Vin. Abr. tit. 
Court, D ; 1 Pol. Abr. 526, D. [An act 
which extends to and affects all persons 
within the limits defined is a public act. 
Levy V. State, 6 Ind. 281. See also post, 
§§ 479, 489, 490. Courts will not take 
notice of private statutes, such as a spe- 
cial act for a survey of a particular tract 
of land, Allegheny v. Nelson, 25 Penn. 
St. 332; post, § 480; nor of the history 
of public statutes, as shown by legisla- 
tive journals, Grob i'. Cushman, 45 111. 
119 ; nor of municipal ordinances and 
by-laws, Hassard v. Municipality, &c., 
7 La. An. 4y5; Mooney v. Kennett, 19 
Mo. 551; Case t-. Mobile, 30 Ala. 538; 
Garvin v. Wells, 8 Iowa, 286]. Judges 
will also take notice of the usual practice 
and course of conveyancing. 3 Sugd. 
Vend. & Pur. '28; Willoughby v. Wil- 
loughbv, 1 T. R. 772, per Ld. Hardwicke ; 
Doe y. Milder, 2 B. & Aid. 793; Eowe v. 



Grenfel, Ry. & Mo. .398, per Abbott, 
C. J. So, of the general lien of bankers 
on securities of their customers, deposited 
with them. Brandao v. Barnett, 3 M. G. 
& Sc. 519. 

3 Anon., 12 Mod. 345; Wright v. Bar- 
nard, 2 Esp. 700 ; Yeaton v. Pry, 5 Cranch, 
5.35 ; Brown v. Philadelphia Bank, 6 S. & 
R. 484 ; Chanoine v. Fowler, 3 Wend. 17.3, 
178; Bayley on Bills, 515 (2d Am. ed. by 
Phillips &, Sewall) ; Hutcheon i'. Man- 
nington, 6 Ves. 823 ; Porter v. Judson, 1 
Gray, 175. 

■* Croudson v. Leonard, 4 Cranch, 435 ; 
Rose I'. Himely, Id. 292; Church v. Hub- 
barc, 2 Cranch, 187; Thompson v. S'e a'- 
art, 3 Conn. 171, 181 ; Green v. Waller, 2 
Ld. Raym. 891, 893; Anon., 9 Mod. GG; 
Story on the Conflict of Laws, § 643 ; 
Hughes V. Cornelius, as stated bv Lord 
Holt, in 2 Ld. Raym. 893. And "see T. 
Raym. 473 ; s. c. 2 Show. 232. 

5 Rex V. Luffe, 8 East, 202; Fay v. 
Prentice, 9 Jur. 876 [Floyd v. Ricks, 14 
Ark. 286]. 

6 6 Vin. Abr. 491. pi. 6, 7, 8; Hoyle v. 
Cornwallis, 1 Stra. 387 ; Page v. Faucet, 
Cro. El. 227 ; Harvey v. Broad, 2 Salk. 
626 ; Hanson v. Shackelton, 4 Dowl. 48 ; 
Dawkins v. Smithwick, 4 Flor. 158 
[Sasscer v. Farmers' Bank, 4 Md. 409 j 



8 



LAW OF EVIDEl^CE. 



[PABT I. 



vernacular language ; ^ nor the legal weights and measures ; ^ 
nor any matters of public history, affecting the whole peo- 
ple ; ^ nor public matters, affecting the government of the coun- 
try." 

§ 6. Political divisions, events, and public ofiBcers. Courts also 
take notice of the territorial extent of the jurisdiction and sov- 
ereignty, exercised de facto by their own government ; and of 
the local divisions of their country, as into states, provinces, 
counties, cities, towns, local parishes, or the like, so far as polit- 
ical government is concerned or affected ; and of the relative 
positions of such local divisions ; but not of their precise bounda- 
ries, farther than they may be described in public statutes.^ 



Sprowl V. Lawrence, 33 Ala. 674 ; Bury 
V. Blogg, 12 Q. B. 877 ; Holman v. Burrow, 
2 Ld. llaym. 795 ; nor of the differences 
of time in different longitudes, Curtis 
V. Marsh, 1 C. B. n. s. 153; but vicis- 
situdes of the season must be proved, 
Dixon V. JS'icholls, 39 111. 372]. 

1 Clementi v. Golding, 2 Campb. 25 ; 
Commonwealth v. Kneeland, 20 Pick. 
239 [nor of customary abbreviations, 
Weaver v. McElhanon, 13 Mo. 89; Mosely 
V. Maston, 37 Ala. 216; Stephen v. State, 
11 Geo. 225 ; Ellis v. Park, 8 Texas, 205. 
But in Texas it will not be assumed that 
"New Orleans, La.," means New Orleans, 
Louisiana, Russell v. Martin, 15 Texas, 
238 ; though it would doubtless take no- 
tice that New Orleans is not in Texas, 
Cooke V. Wilson, 1 C. B. n. s. 153. But 
the meaning of special phrases, such as 
"cost-book principle" (Bodmin Mines 
Co., 23 Beav. 370), "Black Republicans," 
and the like, must be proved. Baltimore 
V. State, 12 Md. 376.] 

2 llockin V. Cooke, 4 T. R. 314. The 
current coins of the country, whether 
established by statute or existing imme- 
niorially, will be judicially recognized. 
[Daily v. State, 10 Ind. 536.] Tlie courts 
will also take notice of the character of 
the existing circulating medium, and of 
the popular language in reference to it, 
Lampton v. Haggard, 3 Monr. 149 ; Jones 
V. Overstrect, 4 Monr. 547 [United 
Slates f. Burns, 5 McLean, 23; United 
States V. King, Id. 208 ; but not of the 
extent of its depreciation, Modawell v. 
Holmes, 40 Ala. 3'Jl]; nor of the cur- 
rent value of the notes of a bank at 
any particular time, Feemster v. Ringo, 
6 Monr. 336. 

3 Bank of Augusta v. Earle, 13 Pet. 
510, 590; 1 Stark. Ev. 211 (6th Am. ed.) 
[See also Payne i*. Tread well, 16 Cal. 



220; Douglass v. Branch Bank, 19 Ala. 
659. So, that slavery is abolished, and 
when and how, Ferdinand v. State, 39 
Ala. 706; that the Metliodist P'piscopal 
church was divided into two parts, and 
when, Humphrey v. Burnside, 4 Bush 
(Ky.), 215; and that the Rebellion was 
suppressed, and when. Clay v. Patton, 50 
Ala.] 

* Taylor v. Barclay, 2 Sim. 221. 
Where a libel was charged, in stating 
that the plaintiff's friends, in the advo- 
cacy of her claims, " had realized the 
fable of the Frozen Snake," it was held 
that the court might judicially take no- 
tice that the knowledge of that fable of 
Phaedrus generally prevailed in society. 
Hoare v. Silverlock, 12 Jur. 695; 12 Ad. 
& El. N. s. 624. 

6 Deybel's case, 4 B. & Aid. 242 ; 2 
Inst. 557 [Kirbv v. Hickson, 1 L. M. 
St. p. 364] ; Fazakerley v. Wiltshire. 1 
Stra. 469 ; Humplirevs v. Budd, 9 Dowl. 
1000; Ross V. Reddick, 1 Scam. 73; 
Goodwin v. Appleton, 9 Shepl. 453 ; Van- 
derwerker v. The People, 6 Wend. 530 
[State i;. Powers, 25 Conn. 48; Ham v. 
Ham, 39 Maine, 263 ; Id. 291 ; Wright v. 
Phillips, 2 Greene (Iowa), 191 ; Robert- 
son i\ Teal, 9 Texas, 344 ; Wheeler v. 
Moody, Id. 372 ; Ross v. Austill, 2 Cal. 
183; Kidder v. Blaisdell, 45 Maine, 461 ; 
Winnipiseogee Lake Co. v. Young, 40 
N. H. 420. So they will take notice .,f 
the great geographical features of the 
country, its lakes, rivers, and mountains. 
Mossman v. Forest, 27 Ind. 2.33. And 
that a particular place is or is not in a 
particular county. Martin v. Martin, 51 
Me. 366 ; and see also Cooke i-. Wilson, 
1 C. B. N. 8. 153. Contra, Brune v. 
Thompson, 2 Ad. & El. n. 8. 789. Nor 
will the courts judicially take notice, 
that a de facto sovereignty is or is not 



CHAP, n.] THINGS JUDICIALLY TAKEN NOTICE OF. 9 

They will also judicially recognize the political constitution or 
frame of their own government ; its essential political agents or 
public officers, sharing in its regular administration ; and its 
essential and regular political operations, powers, and action. 
Thus, notice is taken, by all tribunals, of the accession of the 
Chief Executive of the nation or state, under whose authority 
they act ; his powers and privileges ; ^ the genuineness of his sig- 
nature,2 the heads of departments, and principal officers of state, 
and the public seals ; ^ the election or resignation of a senator of 
the United States; the appointment of a cabinet or foreign 
minister;* marshals and sheriffs,^ and the genuineness of their 
signatures,^ but not their deputies ; courts of general jurisdiction, 
their judges,'^ their seals, their rules and maxims in the adminis- 
tration of justice, and course of proceeding ; ^ also, of public 
proclamations of war and peace,^ and of days of special public 



rightfully exercised. State v. Dunwell, 
3 R. I. 127.] 

1 Elderton's case, 2 Ld. Raym. 980, 
per Holt, C. J. [Hizer v. State, 12 Ind. 
330; Lindsey v. Attorney-general, 33 
Miss. 608; State v. Williams, 5 Wis. 
3081. 

'^ Jones V. Gale's Ex'r, 4 Martin, 635. 
And see Rex v. Miller, 2 W. Bl. 797 ; 1 
Leach Or. Cas. 74; Rex v. Gully, 1 
Leach, Cr. Cas. 98. 

3 Rex V. Jones, 2 Campb. 121 ; Ben- 
nett V. The State of Tennessee, Mart. & 
Yerg. 133; Ld. Melville's case, 29 How. 
St. Tr. 707. And see, as to seals, infra, 
§ 50.3, and cases there cited. [The courts 
of the United States will take notice 
of the persons who from time to time 
preside over the patent-office, whether 
permanently or transiently. York, &c. 
Railroad Co. v. Winans, 17 How. (U. S.) 
30] 

* Walden v. Canfield, 2 Rob. La. 466. 

6 Holman v. Burrow, 2 Ld. Raym. 
794; [Ingrahamr. State, 27 Ala. 17; Ma- 
jor r. State, 2 Sneed (Tenn.), 11. And 
county officers generally. Wetherbee v. 
Dunn, 32 Cal. 106 ; Templeton v. Mor- 
gan, 16 La. An. 438 ; Graham v. Ander- 
son, 42 III. 514. The Court of Common 
Pleas will take judicial notice that the 
Queen's prison is in England. Wick- 
ens r. Goatley, 8 Eng. Law & Eq. 420, 
422.] 

t* Alcock V. Whatmore, 8 Dowl. P. C. 
615. 

7 Watson V. Hay, 3 Kerr, 5-59. [The 
Supreme Court (of Ohio) will take judi- 
cial notice of the time fixed for the com- 



mencement of its sessions, but not of the 
duration of any particular session. Gil- 
liland v. Sellers, 2 Ohio, n. s. 223. See 
also Lindsay v. Williams, 17 Ala. 229.] 

8 Tregany v. Fletcher, 1 Ld. Raym. 
154 ; Lane's case, 2 Co. 16; 3 Com. Dig. 
336, Courts, Q. ; Newell v. Newton, 10 
Pick. 470; Elliott v. Evans, 3 B. & P. 
183, 184, per Ld. Alvanley, C. J. ; Ma- 
berley v. Robins, 5 Taunt. 625 ; Tooker i'. 
Duke of Beaufort, Sayer, 296 [Tucker 
V. State, 11 Md. 322]. Whether superior 
courts are bound to take notice who are 
justices of the inferior tribunals, is not 
clearly settled. In Skipp v. Hook, 2 
Stra. 1080, it was objected that they were 
not; but whether the case was decided 
on that or on the other exception taken 
does not appear. Andrews, 74, reports 
the same case, ex relatione alteriiis, and 
equally doubtful. And see Van Sandau 
V. Turner, 6 Ad. & El. 773, 786, per Ld. 
Denman. The weight of American au- 
thorities seems rather on the affirmative 
side of the question. Hawks v. Kenne- 
bec, 7 Mass. 461; Ripley v. Warren, 2 
Pick. 592 ; Despau v. Swindler, 3 Mar- 
tin, N. s. 705; FoUain v. Lofevre, 3 
Rob. (La.) 13. In Louisiana, tlie courts 
take notice of the signatures of execu- 
tive and judicial officers to all official 
acts. Jones v. Gale's Ex'r, 4 Martin, 
635 ; Wood v. Fitz, 10 Martin, 196. 

9 Dolder v. Ld. Huntingfield, 11 Ves. 
292 ; Rex v. De Bercnger, 3 M. & S. 67 ; 
Taylor v. Barclay, 2 Sim. 213. [So also 
of treaties. United States v. Reynes, 9 
How. (U. S.) 127 ; military orders affect- 
ing proceedings in courts, Taylor v. Gra- 



10 



LAW OF EVIDENCE. 



[part I. 



fasts and thanksgivings; stated days of general political elections; 
the sittings of the legislature, and its established and usual course 
of proceeding ; the privileges of its members, but not the transao 
tions on its journals.^ The courts of the United States, moreover, 
take judicial notice of the ports and waters of the United States 
in which the tide ebbs and flows ; of the boundaries of the several 
states and judicial districts ; "^ and, in an especial manner, of all 
the laws and jurisprudence of the several States in which they 
exercise an original or an appellate jurisdiction. The judges of 
the Supreme Court of the United States are, on this account, bound 
to take judicial notice of the laws and jurisprudence of all the 
States and Territories.^ A court of errors will also take notice 
of the nature and extent of the jurisdiction of the inferior court 
whose judgment it revises.^ In fine, courts will generally take 
notice of whatever ought to be generally known within the limits 
of their jurisdiction.^ In all these, and the like cases, where 
the memory of the judge is at fault, he resorts to such documents 
of reference as may be at hand, and he may deem worthy of 
confidence.^ 



ham, 18 La. An. 256 ; and acting military 
oflBcers, Chapman v. Herrold, 58 Pa. !St, 
106.] 

I Lake v. King, 1 Saimd. 131 ; Birt v. 
Rotliwell, 1 Ld. Raym. 210, 343 ; Hex v. 
Wilde, 1 Lev. 290; 1 Dong. 97, n. 41; 
Rex V. Arundel, Hob. 109-111; Rex v. 
Knollys, 1 Ld. Raym, 10, 15; Stockdale 
V. Hansard, 7 C. & P. 731 ; 9 Ad. & El. 1 ; 
11 Ad. & EI. 253 ; Siieriff v. iMiddlesex's 
case, Id. 273; Cassidy v. Stewart, 2 M. & 
G. 437. 

'^ Story on Eq. Plead. § 24, cites 
United States ?'. La Vcngoaneo, 3 Dall. 
297; The Apollon, 9 Wheat. 374; The 
Thomas Jefferson, 10 Wheat. 428 ; Pey- 
roux V. Howard, 7 Pet. 342. They will 
also recognize the nsiial course of the 
great inland conimerce, by which tlie 
products of agricultm-e in the valley of 
the Missis.sippi tind their way to market. 
Gibson v. Stevens, 8 How. "(S. C.) 384; 
[Lathrop v. Stewart, 5 McLean, 107.] 

•> Ibid. ; Owings v. Hull, 9 Put. 007, 
624, 025; Jasper v. I'orter, 2 McLean, 
679; [Miller v. McQuerry, 5 McLean, 
469.] 

* Chitty V. Dendy, 3 Ad. & El. .310. 
[See March v. Commonwealtli, 12 E. 
Mon. 25] 

•^ [As of any process of art or science 
whose results have become matterof com- 
mon knowledge, as that photograpliy is a 



means ofproducing correct likenesses, and 
therefore photographs are admissible as 
a means of identification or description. 
Udderzook's case, 7() Pa. St. 340 ; Coz- 
zens V. Higgins, 1 Abb. Ct. of App. Dec. 
451. Or tliat certain processes produce 
certain results. Brown v. Piper, U. S. 
Sup. Ct., Nov. 1875. In Texas it is 
held that courts will not take judicial 
notice of the quantity of lands witiiin 
given courses and distances, Tison r. 
Smith, 8 Texas, 147 ; in Indiana, that they 
will take notice of the distance between 
two places by the ordinary route of travel, 
Hipot i'. Cocln-an, 13 Ind. 175; Goodwin 
V. Ajipleton, 22 Maine, 433 : in New York, 
of the length of an ordinary steam \oy- 
age across the Atlantic, Oppenheim v. 
Leo Wolf, 3 Sandf. Ch. 571 : and in 
Alabama, of the nature of lotteries, and 
liow they are managed, BouUermet v. 
State, 28 Ala. 83, — all of which seem 
hardly within the rules of common knowl- 
edge. There is not much consistency in 
the cases, and possibly this may result 
from the fact that different judges nuiy 
assume that what is or is not known to 
them is or is not generally knf)wn.] 

•^ Gresley on Evid. 395. [iio he may 
resort to other sources ot informa- 
tion in his discretion. Wilioughby v. 
Willoug]d)y, 1 T. R. 772; Taylor c. Bar- 
clay, 2 Sim. 221 ; United States v. Tesch- 



CHAP, n.] THINGS JUDICIALLY TAKEN NOTICE OF. 



11 



maker, 22 How. (U. S.) 392. When there 
is no controversy as to the precise spot 
where a crime is committed, but a ques- 
tion arises, upon the construction of 
charters and acts of jurisdiction, whether 
this spot is within the jurisdiction, it is a 
question of law for tlie court ; and it will 
not only take judicial notice of legisla- 
tive enactments, ancient charters, and 
geographical position, but it will refresh 
its recollection and guide its judgment 
by reference to the records of the court, 



general histories of deceased authors of 
established reputation, and the official 
records of the census. "Wagner's case, 
61 Maine, 178. But not to local histories. 
The line of distinction between local 
and general histories is, however, far 
from well defined. McKinnon v. Bliss, 
21 N. Y. 206. As to seals, public stat- 
utes, documents, proclamations, legisla- 
tive acts, and the like, see also, post, 
§§ 479, et seg.] 



12 LAW OF EVIDENCE. [PABT I. 



CHAPTER III. 

OF THE GROTJlSrDS OF BELIEF. 

§ 7. Personal experience. "We proceed now to a brief consid- 
eration of the Q-eneral Nature and Principles of Evidence, No 
inquiry is liere proposed into the origin of human knowledge ; it 
being assumed, on the authority of approved writers, that all that 
men know is referable, in a philosophical view, to perception and 
reflection. But, in fact, the knowledge acquired by an individ- 
ual, through his own perception and reflection, is but a small 
part of what he possesses ; much of what we are content to regard 
and act upon as knowledge having been acquired through the 
perception of others.^ It is not easy to conceive that the 
Supreme Being, whose wisdom is so conspicuous in all his works, 
constituted man to believe only upon liis own personal expe- 
rience ; since in that case the world could neither be governed 
nor improved ; and society must remain in the state in which it 
was left by the first generation of men. On the contrary, during 
the period of childhood, we believe implicitly almost all that is 
told us and thus are furnished with information which we coidd 
not otherwise obtain, but which is necessary, at the time, for oiu* 
present protection, or as the means of future improvement. 
This disposition to believe may be termed instinctive. At an 
early period, however, we begin to find that, of the things told 
to us, some are not true, and thus our implicit reliance on the 
testimony of others is weakened : first, in regard to particular 
things in which we have been deceived ; then in regard to per- 
sons whose falsehood we have detected ; and, as these instances 
multiply upon us, we gradually become more and more distrustful 
of such statements, and learn by experience tlie necessity of 
testing them by certain rules. Thus, as our abilit}^ to obtain 
knowledge by other means increases, our instinctive reliance on 
testimony diminishes, by yielding to a more rational belief.^ 

^ Abercrombie on the Intellectual 2 Gambler's Guide, p. 87 ; McKinnon's 
Powers, part 2, § 1, pp. 45, 46. Philosophy of Eviilencc, p. 40. This 



CB.JiF. m.] 



GROUNDS OF BELIEF. 



13 



§ 8, Experience of others. It is true, that, ill receiving the 
knowledge of facts fi-om the testimony of others, we are much 



subject is treated more largely by Dr. 
Rei<l in liis profound "Inquiry into tlie 
Human Mind," eh. 6, § 24, pp. 428-4:34, 
in these words : "Tiie wise and benefi- 
cent Autlior of Nature, who intended that 
wo should be social creatures, and that 
we shouhl receive the greatest and most 
important part of our knowledge by the 
information of others, hath, for these 
purposes, implanted in our natures two 
principles that tally with each other. 
The first of these principles is a propen- 
sity to speak trutli and to use the signs 
of language, so as to convey our real 
sentiments. This principle has a power- 
ful operation, even in the greatest liars ; 
for where they lie once they speak truth 
a hundred times. Truth is always 
uppermost, and is tlie natural issue of 
the mind. It requires no art or training, 
no inducement or temptation, but only, 
that we yield to a natural impulse. 
Lying, on the contrary, is doing violence 
to our nature ; and is never practised, 
even by the worst men, without some 
temptation. Speaking truth is like using 
our natural food, which we would do 
from appetite, although it answered no 
end; but lying is like taking physic, 
which is nauseous to the taste, and which 
no man takes but for some end which 
he cannot otherwise attain. If it should 
be objected, that men may be influenced 
by moral or political considerations to 
speak truth, and, therefore, that their 
doing so is no proof of such an original 
principle as we have mentioned ; I an- 
swer, first, that moral or political con- 
siderations can have no influence until 
we arrive at j'ears of understanding and 
reflection ; and it is certain, from expe- 
rience, that children keep to truth inva- 
riably, before they are capable of being 
influenced b}' such considerations. Sec- 
ondly, when we are influenced by moral 
or political considerations, we must be 
conscious of that influence, and capable 
of perceiving it upon reflection. Now, 
when I reflect upon my actions most 
attentively, I am not conscious that, in 
speaking truth, I am influenced on ordi- 
nary occasions by any motive, moral or 
political. I find that truth is always at 
the door of my lips, and goes forth spon- 
taneously, if not held back. It requires 
neither good nor bad intention to bring 
it forth, but only that I be artless and 
undesigning. There may, indeed, be 
temptations to falsehood, which would 
be too strong for the natural principle of 



veracity, unaided by principles of honor 
or virtue; but where there is no such 
temptation, we speak truth by instinct ; 
and this instinct is the principle I have 
been explaining. By this instinct, a 
real connection is formed between our 
words and our tlioughts, and thereby the 
former become fit to be signs of the lat- 
ter, which they could not otherwise be. 
And although this connection is broken 
in every instance of lying and equivoca- 
tion, yet these instances being compara- 
tively few the authority of human testi- 
mony is only weakened by them, but 
not destroyed. Another original princi- 
ple, implanted in us by the Supreme 
Being, is a disposition to confide in the 
veracity of others, and to believe what 
they tell us. This is the counterpart to 
the former ; and as that may be called 
the principle of veracity, we shall, for 
want of a more proper name, call this 
the principle of credulity. It is unlim- 
ited in children, until they meet with 
instances of deceit and falsehood ; and it 
retains a very considerable degree of 
strength through life. If nature had 
left the mind of the speaker in aquilibrio, 
without any inclination to the side of 
truth more than to that of falsehood, 
children would lie as often as they speak 
truth, until reason was so far ripened, 
as to suggest the imprudence of lying, 
or conscience, as to suggest its immo- 
rality. And if nature had left the mind 
of the hearer in aquilibrio, without any 
inclination to the side of belief more 
than to that of disbelief, we should take 
no man's word, until we had positive 
evidence that he spoke truth. His testi- 
mony would, in this case, have no more 
authority than his dreams, which may 
be true or false; but no man is disposed 
to believe them, on this account, that 
they were dreamed. It is evident, tliat, 
in the matter of testimony, the balance 
of human judgment is by nature inclined 
to the side of belief ; and turns to that 
side of itself, when there is nothing put 
into the opposite scale. If it was not 
so, no proposition that is uttered in dis- 
course would be believed, imtil it was 
examined and tried by reason ; and most 
men would be unable to find reasons for 
believing the thousandth part of what is 
told them. Such distrust and incredulity 
would deprive us of the greatest bene- 
fits of society, and place us in a worse 
condition than that of savages. Chil- 
dren, on this supposition, would be abso- 



14 



LAW OF EVIDEKCE. 



[PAKT I. 



influenced by their accordance with facts previously known or 
believed ; and this constitutes what is termed their probability. 
Statements, thus probable, are received upon evidence much less 
cogent than we require for the belief of those which do not accord 
with our previous knowledge. But while these statements are 
more readily received, and justly relied upon, we should beware 
of unduly distrusting all others. While unbounded credulity is 
the attribute of weak minds, which seldom think or reason at all, — 
*' quomagis nesciunt eo magis admirantur," — unlimited scepticism 
belongs only to those who make their own knowledge and obser- 
vation the exclusive standard of probability. Thus the king of 
Siam rejected the testimony of the Dutch ambassador, that, in liis 
country, water was sometimes congealed into a solid mass ; for it 
was utterly contrary to his own experience. Sceptical philoso- 
phers, inconsistently enough with their own principles, yet true 
to the nature of man, continue to receive a large portion of their 
knowledge upon testimony derived, not from their own experi- 



lutely incredulous, and therefore abso- 
lutely incapable of instruction ; those 
who had little knowledge of human life, 
and of the manners and ciiaracters of 
men, would be in tlie next degree in- 
credulous ; and the most credulous men 
■would be tliose of greatest experience, 
and of the deepest penetration ; because, 
in many cases, they would be able to 
find good reasons for believing testimony, 
which the weak and the ignorant could 
not discover. In a word, if credulity 
were the effect of reasoning and experi- 
ence, it nmst grow up and gather 
strength in the same proportion as rea- 
son and experience do. But if it is the 
gift of nature, it will be strongest in 
childhood, and limited and restrained by 
experience; and the most superficial 
view of human life shows, that the last 
is really the case, and not tlie first. It 
is the intention of nature, that we should 
be carried in arms before we are able to 
walk upon our legs; and it is likewise 
the intention of nature, that our belief 
sliould be guided by the authority and 
reason of others, before it can be guided 
by our own reason. The weakness of 
the infant, and the natural affection of 
the mother, plainly indicate the former; 
and the natural credulity of youth and 
authority of age as plainly indicate the 
latter. Tiie infant, by proper nursing 
and care, acquires strength to walk with- 
out support. Reason hath likewise her 



infancy, when she must be carried in 
arms ; then she leans entirely upon au- 
thority, by natural instinct, as if she was 
conscious of her own weakness ; and 
without this support she becomes vertig- 
inous- AVheu brought to maturity by 
proper culture, she begins to feel her 
own strength, and leans less upon the 
reason of others; she learns to suspect 
testimony in some cases, and to disbe- 
lieve it in others ; and sets bounds to 
that authority to which she was at first 
entirely subject. But still, to the end of 
life, she finds a necessity of borrowing 
light from testimony, where she has 
none within herself, and of leaning in 
some degree upon the reason of others, 
where she is conscious of her own imbe- 
cility. And as, in many instances. Rea- 
son, even in her maturity, borrows aid 
from testimony, so in others she mutu- 
ally gives aid to it and strengthens its 
authority. For, as we find good reason 
to reject testimony in some cases, so in 
others we find good reason to n.-ly upon 
it with perfect security, in our most im- 
portant concerns. The character, the 
number, and the disinterestedness of 
witnesses, the impossibility of collusion, 
and the incredibility of their concurring 
in their testimony without collusion, 
may give an irresistible strength to tes- 
timony, compared to whicli its native 
and intrinsic authority is very inconsid 
erable." 



CHAP, in.] GROXUSTDS OF BELIEF. 15 

ence, but from that of other men ; and tliis, even when it is at 
variance with much of their own personal observation. Thus, 
the testimony of the historian is received with confidence, in 
I'egard to the occurrences of ancient times ; that of the naturalist 
and the traveller, in regard to the natural liistory and civil con- 
dition of other countries ; and that of the astronomer, respecting 
the heavenly bodies ; facts, which, upon the narrow basis of his 
own " firm and unalterable experience," upon which Mr. Hume 
so much relies, he would be bound to reject, as wholly unworthy 
of belief. 

§ 9. Same subject. The uniform habits, therefore, as well as 
the necessities of mankind, lead us to consider the disposition to 
believe, upon the evidence of extraneous testimony, as a funda- 
mental principle of our moral nature, constituting the general 
basis upon which all evidence may be said to rest.^ 

§ 10. Same subject. Subordinate to this paramount and origi- 
nal principle, it may, in the second place, be observed, that evi- 
dence rests upon our faith in human testimony, as sanctioned by 
experience ; that is, upon the general experienced truth of the 
statements of men of integrity, having capacity and opportunity 
for observation, and without apparent influence from passion or 
interest to pervert the truth. Tliis belief is strengthened by our 
previous knowledge of the narrator's reputation for veracity ; by 
the absence of conflicting testimony ; and by the presence of that 
which is corroborating and cumulative. 

§ 11. Relation of facts to each other. A third basis of evidence 
is the kno\\Ti and experienced connection subsisting between 
collateral facts or circumstances, satisfactorily proved, and the 
fact in controversy. This is merely the legal application, in 
other terms, of a process, familiar in natural philosophy, showing 
the truth of an hypothesis by its coincidence with existing phe- 
nomena. The connections and coincidences to which we refer 
may be either physical or moral ; and the knowledge of them is 
derived from the known laws of matter and motion, from animal 
instincts, and from the physical, intellectual, and moral constitution 
and habits of man. Their force depends on their sufficiency to 
exclude every other hypothesis but the one under consideration. 
Thus, the possession of goods recently stolen, accompanied with 
personal proximity in point of time and place, and inability in 
1 Abercrombie on the Intellectual Powers, part 2, § 3, pp. 70-75. 



16 LAW OF EVIDENCE. [PAET I. 

the party charged, to show how he came by them, would seem 
naturally* though not necessarily, to exclude every other hypoth- 
esis but that of his guilt. But the possession of the same 
goods, at a remoter time and place, would warrant no such con- 
clusion, as it would leave room for the hypothesis of their having 
been lawfully purchased in the course of trade. Similar to tliis 
in principle is the rule of noseitur a sociis, according to which the 
meaning of certain words, in a written instrument, is ascertained 
by the context. 

§ 12. Coincidences. Some writers have mentioned yet another 
ground of the credibility of evidence, namely, the exercise of our 
reason upon the effect of coincidences in testimony, which, if 
collusion be excluded, cannot be accounted for upon any other 
hypothesis than that it is true.^ It has been justly remarked, 
that progress in knowledge is not confined, in its results, to the 
mere facts which we acquire, but it has also an extensive influ- 
ence in enlarging the mind for the further reception of truth, 
and setting it free from many of those prejudices which influence 
men whose minds are limited by a narrow field of observation.^ 
It is also true, that, in the actual occurrences of human life, 
nothing is inconsistent. Every event which actually transpires 
has its appropriate relation and place in the vast complication of 
ch'cumstances, of which the affairs of men consist; it owes its 
origin to those which have preceded it ; it is intimately connected 
with all others which occur at the same time and place, and often 
with those of remote regions ; and, in its turn, it gives birth to a 
thousand others which succeed.^ In all this, there is perfect 
harmony ; so that it is hardly possible to invent a story which, if 
closely compared with all the actual contemporaneous occurrences, 
may not be shown to be false. From these causes, minds, deeply 
imbued with science, or enlarged by long and matured experi- 
ence, and close observation of the conduct and affairs of men, 
may, with a rapidity and certainty approaching to intuition, per- 
ceive the elements of truth or falsehood in the face itself of the 
narrative, without any regard to the narrator. Thus, Arcliimedes 
might have believed an account of the invention and wonderful 
powers of the steam-engine, which his unlearned countrj'^men 

1 1 Stark. Evid. 471, note. 8 1 Stark. Evid. 496. 

2 Abcrcrombie on the Intellectual 
Powers, part 2, § 3, p. 71. 



CHAP, in.] GKOtTNDS OF BELIEF. 17 

would hare rejected as incredible ; and an experienced judge 
may instantly discover the falsehood of a witness, whose story an 
inexperienced jury might be inclined to believe. But though the 
mind, in these cases, seems to have acquired a new power, it is 
properly to be referred only to experience and observation. 

§ 13. Direct and circumstantial evidence. In trials of fact, it 
vill o-enerally be found that the factum probandiim is either 
diiectly attested by those who speak fi-om their own actual and 
personal knowledge of its existence, or it is to be inferred from 
other facts, satisfactorily proved. In the former case, the truth 
rests upon the second ground before mentioned, namely, our faith 
in human veracity, sanctioned by experience. In the latter case, 
it rests on the same ground, with the addition of the experienced 
connection between the collateral facts thus proved and the fact 
which is in controversy ; constituting the third basis of e\'idence 
before stated. The facts proved are, in both cases, directly 
attested. In the former case, the proof applies immediately to 
the factum probandum, without any intervening process, and it is 
therefore called direct or positive testimony. In the latter case, 
as the proof applies immediately to collateral facts, supposed to 
have a connection, near or remote, with the fact in controversy, 
it is termed circumstantial ; and sometimes, but not with entire 
accuracy, p>'>'csum])tive. Thus, if a witness testifies that he saw 
A inflict a mortal wound on B, of which he instantly died ; this 
is a case of direct evidence ; and, giving to the witness the credit 
to which men are generally entitled, the crime is satisfactorily 
proved. If a witness testifies that a deceased person was shot 
with a pistol, and the wadding is found to be part of a letter 
addressed to the prisoner, the residue of which is discovered in 
his pocket : here the facts themselves are directly attested ; but 
the evidence they afford is termed circumstantial ; and from these 
facts, if unexplained by the prisoner, the jury may, or may not, 
deduce, or infer, or presume his guilt, according as they are satis- 
fied, or not, of the natural connection between similar facts, and 
the guilt of the person thus connected with them. In both 
cases, the veracity of the witness is presumed, in the absence of 
proof to the contrary ; but in the latter case there is an additional 
presumption or inference, founded on the known usual connection 
between the facts proved, and the guilt of the party implicated. 
This operation of the mind, which is more complex and difficult 



18 LAW OF EVIDENCE. [PAET I. 

in the latter case, has caused the evidence afforded by circum- 
stances to be termed presumptive evidence ; though, in truth, the 
operation is similar in both cases. 

§ 13 a. Degrees of circumstantial evidence. Circumstantial evi- 
dence is of two kinds, namely, certain^ or that from which the 
conclusion in question necessarily follows ; and uncertain, or that 
from which the conclusion does not necessarily follow, but is 
probable only, and is obtained by process of reasoning. Thus, if 
the body of a person of mature age is found dead, with a recent 
mortal wound, and the mark of a bloody left hand is upon the 
left arm, it may well be concluded that the person once lived, and 
that another person was present at or since the time when the 
wound was inflicted. So far the conclusion is certain ; and the 
jury would be bound by their oaths to find accordingi3^ But 
whether the death was caused by suicide or by murder, and 
whether the mark of the bloody hand was that of the assassin, or 
of a friend who attempted, though too late, to afford relief, or to 
prevent the crime, is a conclusion which does not necessarily 
follow from the facts proved, but is obtained, from these and other 
circumstances, by probable deduction. The conclusion, in the 
latter case, may be more or less satisfactory or stringent, accord- 
ing to the circumstances. In civil cases, where the mischief of 
an erroneous conclusion is not deemed remediless, it is not nec- 
essary that the minds of the jurors be freed from all doubt ; it is 
their duty to decide in favor of the party on Avhose side the 
weight of evidence preponderates, and according to the reasonable 
probability of truth. But in criminal cases, because of the more 
serious and irreparable nature of the consequences of a wrong 
decision, the jurors are required to be satisfied, beyond any 
reasonal)le doubt, of the guilt of the accused, or it is their duty 
to acquit him ; tlie 'charge not being proved by that higher 
degree of evidence which the law demands. In civil cases, it is 
sufficient if the evidence, on the whole, agrees with and sup- 
ports the hypothesis which it is adduced to prove ; but in 
criminal cases it must exclude every other hypothesis but that 
of the guilt of the party.^ In both cases, a verdict may well 
be founded on circumstances alone ; and those often lead to 

1 [Every other ronsonable hypothesis. Schusler v. State, 29 Incl. 394; post, § 34, 
Com. V. Goodwin, 14 Gray (Mass. J, 55; and vol. iii. § •J'J.l 



CHAP, in.] 



GROUNDS OF BELIEF. 



19 



a conclusion far more satisfactory than direct evidence can pro- 
duce.^ 



1 See Bodine's case, in the New York 
Legal Observer, vol. iv. pp. 89, 95, where 
the natnre and value of this kind of evi- 
dence are fully discussed. See infra, 
§§ 44-48. And see Commonwealth r. 
Webster, 6 Gush. 296, 310-319 ; [People 
V. Videto, 1 Parker, C. R. 603. United 
States V. Gibert, 2 Sura. (U. S. C. Ct.) 
19. For some valuable observations on 
the caution with wliich circumstantial 
evidence is in general to be received, see 
Taylor, Ev. §§ 42-52. He also criticises 
the so-called judicial axiom that "wit- 
nesses may lie, but circumstances can- 
not " as a false and dangerous proposition. 
But he fails to observe the distinction 
stated by our author between those cir- 
cumstances from which conclusions nec- 
essarily follow, and those from which 
the conclusion is only probable. It is still 
true that, while all witnesses may lie, 
some circumstances cannot, and that un- 
equivocal circumstances are amongst the 
most satisfactory species of evidence. 
The following observations, by Appleton, 
C. J., in the charge in Read's case (Sup. 
Ct. Maine, pamphlet, 1S74 ; 1 Cen. L. J. 
219), seem to be well worthy a place 
here : — 

"Evidence is ordinarily divided into 
two kinds, direct and circumstantial : 
du-ect when the witness testifies to the 
principal fact in issue, — as when a mur- 
der is committed, — and the witness tes- 
tifies that he saw the blow inflicted, which 
resulted in death, and the person by 
whom It was so inflicted. In such a case 
the truth of the witness testifying is 
the main subject of inquirj'. 

'■ In circumstantial testimony there is 
the fact proving and the fact proved in- 
ferentially from the fact given in testi- 
mony. The circumstance must be proved 
to the satisfaction of the jury, and it is 
for them to say when that is done, and 
then to draw the inference from the fact 
or circumstance thus proved. To illus- 
trate : A snow-storm ; the new-falUn 
snow covers the earth ; a witness testi- 
fies to human footprints in the snow : 
you infer some one has passed. He 
givf s you the direction of the toe and the 
heel : you infer the direction in which the 
person was moving. As his steps are 
watched, it is proved that there is a dot 
or hole in the snow : you infer he had a 
stick or cane in his hamls. It is summer ; 
the rain has fallen ; the ground is muddy ; 
a witness testifies to seeing the impres- 
eion of tlie heel and the toes in the mud. 
If you believe the witness, do you doubt 



that the person whose feet made the im- 
pression was barefooted'? Yet this is 
circumstantial evidence. 

" A man testifies to seeing a violent 
blow given by a club, and the falling 
dead of the person struck. You infer the 
man was killed by the blow from the fact 
that a witness so testified, for you did not 
see him, — that is, you infer one fact 
from another, — the killing from the 
sworn testimony, an inference properly 
drawn, if the testimony be true ; but it 
is still an inference. It is of the same 
kind as any other inference of one fact 
from another, — the fact of testimony, 
the assumption of the truth of testimony, 
and the inference from the fact testified 
to its truth. In short, strictly speaking, 
all testimony is circumstantial or infer- 
ential, except what one sees or hears. 

" Yon see a man discharge a loaded 
gun ; you see the flash ; you see a man 
fall dead ; you find the bullet in the 
body ; you saw not the ball in its pas- 
sage through the air from the pistol to 
the body ; you did not see it leave the 
pistol or enter the body ; but, from the 
facts seen, you infer that it did. What 
is this but circumstantial evidence '^ 

" The probative force of circumstan- 
tial evidence depends upon the closeness 
of connection between the fact inferred 
and the fact from which the inference is 
drawn. The more numerous the circum- 
stances, the facts tending to establish a 
given fact, the greater this probative 
force. One circumstance may be of 
slight moment; another, tending to the 
same result, increases, by its consistency 
with tiie first, the probability of the 
inference to be drawn from their exist- 
ence and coexistence : another is added, 
and another, all pointing in the same 
direction ; giving added and increased 
strength to the inference, as each strand 
gives strength to the cable of which it 
forms a component part. Men talk of a 
chain of facts. The comparison is inapt. 
The chain is weakened by the increasing 
number of its hnks, until it breaks by its 
own weight. Not so with circumstantial 
evidence. The rope or cable gains in- 
creased strength by each added strand. 
The failure of proof as to one circum- 
stance is but one strand from the cable. 
The cable may still be firm and strong, 
holding the ship securely at anchor, 
though tossed upon the sea by the fierce 
and stormy winds. 

"The strength of the conclusion is 
not to be ascertained by the addition of 



20 



LAW OP EVIDENCE. 



[PAET I. 



the several probabilities created by the 
several circumstances : their existence 
proved, and their concurrence increases 
in a much liigher degree, the truth of the 
conclusion, till that may become irresist- 
ible from the concurrence of numerous 
distinct, coexistent, and corroborating 
facts, all tending in the same direction to 
one and the same inevitable result. 

" Nor is it necessary that each and 
every circumstance should be proved be- 
yond a reasonable doubt. Some facts 
may be proved with more, some with 
less, assurance of certainty. Such is the 
invariable result. Some facts are proved 
more satisfactorily than others. It is 
enough that you give to each fact its just 
and true weight. 'J'hen, after weighing 
and examining each and all the facts, 
exculpative aud inculpative, if you are 
satisfied beyond a reasonable doubt of 
the guilt of the prisoner, it will be your 
bounden duty to saj' so, thougii some of 
the alleged facts may be proved with a 
less degree of certainty than others. 

" It is in vain that we attempt to de- 
tect or punish crime unless we resort to 
circumstantial evidence. Crime shuns 
the light of day. It seeks darkness. It 
courts secrecy. It endeavors to escape 
detection. The assassin moves stealthily 
upon his unsuspicious or sleeping vic- 
tims. He calls no witness to see him 
strike the fatal blow. He attempts 
to obliterate all traces of crime. He 
geeks to cover up his tracks. Does the 
thief take a witness to see him steal, the 
incendiary to see him apply the torch 1 
You must resort to circumstantial evi- 
dence, or crime must remain unpunished. 
If you wait for an eye-witness to every 
crime, if you expect a felon to call one 
to witness his criminality, you at once 
grant impunity to crime. 

" There may have been cases in which 
the innocent have been convicted. If 
this be so, it is a reason for caution, for 
giving to eacli circumstance its just and 
appropriate weiglit; not for disregarding 
such proof, or neglecting to give it proper 
consideration. But if men have been 
convicted erroneously on circumstantial 
evidence, so have they on direct testi- 
mony ; but is that a reason for refusing 
to act on such testimony 1 Is it any 
more or better reason for refusing to act 
on circumstantial evidence ? Assuredly 
not. 

" The cases are few and far between 
in wliich erroneous verdicts were found 
upon this species of evidence, and the/ 



occurred under entirely different condi- 
tions from tiiose of our own time. For- 
merly the prisoner was not allowed to 
call witnesses and have them sworn. He 
was not allowed to employ counsel. He 
could not be a witness in his own case. 
Now the government summons his wit- 
nesses, pays his counsel, and permits 
him to be a witness to explain, if lie can, 
every adverse fact. But the cases of er- 
roneous verdicts are of rare occurrence. 
The wonder is that they were so few. 
Did you, gentlemen, ever know or liear 
of one in this State ? The stories told of 
such instances may or may not be true, 
but of their truth you have no proof. 
They are resorted to for the purpose of 
imposing upon timid jurymen the belief 
that there should be no safe conviction 
upon circumstantial evidence, that there 
is infinite danger to innocence, if there 
is such conviction. They have nothing 
to do with the case under consideration. 
This you are to decide upon the evidence 
before you, upon nothing else. 

" Circumstantial evidence is legal evi- 
dence. When that satisfies you beyond 
reasonable doubt, you are equally bound 
to act upon it as if it were the most direct. 
The possibility of error exists alike, 
whether the evidence be direct or cir- 
cumstantial. But because you possibly 
may err, do you refuse to act '? Because 
your wlieat may possibly be blighted, do 
you refuse to sow "? Until it pleases 
Providence to give us means of knowl- 
edge beyond our present faculties, we 
must act upon this kind of evidence, 
or grant almost universal impunity to 
crime." 

The following observations also carry 
with them the weight of reason as well 
as authority : — 

" Perhaps strong circumstantial evi- 
dence, in cases of crimes committed for 
the most part in secret, is the most satis- 
factory of any from which to draw the 
conclusion of guilt ; for men may be 
seduced to perjury by many base mo- 
tives, to which the secret nature of tlio 
olfence may sometimes alTord a tempta- 
tion ; but it can scarcely happen that 
many circumstances, especially if they 
be sucli over which the accuser could 
have no control, forming all together 
the links of a transaction, should all un- 
fortunately concur to fix the presump- 
tion of guilt on an individual ; and yet 
such a conclusion be erroneous." 1 East 
P. C. c. 5, § 9.J 



CHAP IV.] OF PRESUAIPTIVE EVIDEKCE. 21 



CHAPTER IV. 

OF PEESTJifPTIVE EVIDENCE. 

§ 14. Several kinds of presiunptions. The general head of 
Presumptive Evidence is usually divided into two, branches ; 
namely, presumptions of law 2in^ presumptions of fact. Prescrip- 
tions OF Law consist of those rules which, in certain cases, 
either forbid or dispense with any ulterior inquiry. They are 
founded, either upon the first principles of justice ; or the laws 
of nature ; or the experienced course of human conduct and 
affairs, and the connection usually found to exist between certain 
things. The general doctrines of presumptive evidence are not 
therefore peculiar to municipal law, but are shared by it in com- 
mon with other departments of science. Thus, the presumption 
of a malicious intent to kill, from the deliberate use of a deadly 
weapon, and the presumption of aquatic habits in an animal 
found with webbed feet, belong to the same philosophy ; differing 
only in the instance, and not in the principle, of its application. 
The one fact being proved or ascertained, the other, its uniform 
concomitant, is universally and safely presumed. It is this uni- 
formly experienced connection which leads to its recognition by 
the law without other proof ; the presumption, however, having 
more or less force, in proportion to the universality of the experi- 
ence. And this has led to the distribution of presumptions of 
law into two classes ; namely, conclusive and disputable. 

§ 15. Conclusive presumptions. Conclusive^ or, as they are 
elsewhere termed, imperative, or absolute presumptions of law, 
are rules determining the quantity of evidence requisite for the 
support of any particular averment, which is not permitted to be 
overcome by any proof that the fact is otherwise. They consist 
chiefly of those cases in which the long-experienced connection, 
before alluded to, has been found so general and uniform as to 
render it expedient for the common good, that this connection 
should be taken to be inseparable and universal. They have 
been adopted by common consent, from motives of public policy. 



22 LAW OF EVIDENCE. [PAET I. 

for tlie sake of greater certainty, and tlie promotion of peace 
and quiet in the community; and therefore it is, that all cor- 
roborating evidence is dispensed with, and all opposing evidence 
is forbidden.! 

§ 16. By statute. Sometimes this common consent is expressly 
declared, through the medium of the legislature, in statutes. 
Thus, by the statutes of limitation, where a debt has been 
created by simple contract, and has not been distinctly recog- 
nized, within six years, as a subsisting obligation, no action can be 
maintained to recover it ; that is, it is conclusively presumed to 
have been paid.^ A trespass, after the lapse of the same period, 
is, in like manner, conclusively presumed to have been satisfied. 
So the possession of land, for the length of time mentioned in tlie 
statutes of limitation, under a claim of absolute title and owner- 
ship, constitutes, against all persons but the sovereign, a conclusive 
presumption of a valid grant.^ 

§ 17. By the common law. In other cases, the common con- 
sent, by which this class of legal presumptions is established, is 
declared through the medium of the judicial tribunals, it being 
the common laio of the land ; both being alike respected, as 
authoritative declarations of an imperative rule of law, against 
the operation of which no averment or evidence is received. 
Thus, the uninterrupted enjoyment of an incorporeal heredita- 
ment, for a period beyond the memory of man, is held to furnish 

1 The presumption of tlic Roman Law limitations are based upon the policy of 

is defined to be, — " Conjectura, ducta ab putting an end to litigation, rather than 

eo, quod ut plurimum fit. Ea conjectura upon any presumption of payment, 

vel a /er/e inchicitur, vel a juclice. Quae ab Taylor Ev. 1, § 07.] 

ipsa lege inducitur, vel ita comparata, ut ^ This period has been limited differ- 

probationem contrarii haud admittat ; vel ently, at different times ; but, for the last 

ut eadem possit elidi. Priorem doctores fifty years, it lias been shortened at suc- 

prasum}>lio)iem juris et de .juke, posterio- ceeding revisions of the law, both in Eng- 

j-em /j/-fEsiOH;)//(»7)t'w Juris, adpellant. Quae land and the United States. By Stat 3 

a Jndice indicitur conjectura, pncsum/i/io & 4 Wni. IV". c. 27, all real actions are 

HOMiNis vocari solet ; et semper admittit barred after twenty years from the time 

probationem contrarii, quamvis, si alicu- when the right of action accrued. And 

jus niomenti sit, probandi onere relevet." this period is adopted in most of the 

llein. ad Pand., pars 4, § 124. Of the United States, though in some of tlie 

former, answering to our conclusive pre- States it is reduced to seven years, while 

sumption, Mascardus observes, — "Super in others it is prolonged to fifty. See 3 

hac prresumptione lex firmum sancit jus. Cruise's Dig. tit. 31, c. 2, the sj'nopsis 

et cam pro veritnle, hahct." De Proba- of Limitations at the end of the chapter 

tiouibus, vol i. quaist. x. 48. An excep- (Grcenlcaf's cd.). See also 4 Kent, 

tion to the general conclusiveness of this Comm. 188, note (a). The same period 

class of presumptions is allowed in tlie in regard to the title to real property, or, 

case of admissions in jndicio, which will as some construe it, only to the profits of 

be hereafter mentioned. See infia^ tlie land, is ailojjted in the Hindu Law. 

§§ 10!>, 18(5, 205, 20tj. See Macnaghten's Elements of Hindu 

^ [But most, if not all, the statutes of Law, vol. i. p. 201. 



CHAP. IV.I 



OF PKESTJJMPTIVE EVIDEXCE. 



23 



a conclusive presumption of a prior grant of that which has been 
so enjoyed. Tliis is termed a title by prescription.^ If this 
enjoyment has been not onl}' uninterrupted, but exclusive and 
adverse in its character, for the period of twenty years, this also 
lias been held, at common law, as a conclusive presumption of 
title.2 There is no difference, in principle, whether the subject 
be a corporeal or an incorporeal hereditament ; a grant of land 
may as well be presumed as a grant of a fishery, or a common, or 
a way.^ But, in regard to the effect of possession alone for a 
period of time, unaccompanied by other evidence, as affording a 
presumption of title, a difference is introduced, by reason of the 
statute of limitations, between corporeal subjects, such as lands 
and tenements, and things incorporeal ; and it has been held, that 
a grant of lands, conferring an entire title, cannot be presumed 
from mere possession alone, for any length of time short of that 
prescribed by the statute of limitations. The reason is, that, with 
respect to corporeal hereditaments, the statute has made all the 
provisions which the law deems necessary for quieting possessions ; 
and has thereby taken these cases out of the operation of the 



1 3 Cruise's Dig. 430, 431 (Greenleafs 
ed.). Prsescriptio est titilus, ex usu et 
tempore substantiam capiens, ab authori- 
tate logis." Co. Litt. 113 a. What length 
of time constitutes tliis period of legal 
memory has been much discussed among 
lawyers. In this country, the courts are 
inclined to adopt the periods mentioned 
in the statutes of limitation, in all cases 
analogous in principle. Coolidge v. 
Learned, 8 Pick. 504 ; Melvin v. Whiting, 
10 Pick. 295; Kicard v. Williams, 7 
Wheat. 110. In England, it is settled by 
Stat. 2 & 3 Wm. IV. c. 71, by which the 
period of legal memory has been limited 
as follows : In cases of rights of common 
or other benefits arising out of lands, ex- 
ce])t tithes, rents, and services, prima 
facie to thirty years ; and conclusively to 
sixty years, unless proved to have been 
held by consent, expressed by deed or 
other writing ; in cases of aquatic rights, 
■ways, and other easements, /J/i'wa/tic/e to 
twenty years ; and conclusively to forty 
years, unless proved in like manner, by 
written evidence, to have been enjoyed 
by consent of the owner ; and, in cases 
of lights, conclusively to twenty years, 
unless proved in like manner, to have 
been enjoyed by consent. In the Roman 
Law, prescriptions were of two kinds, — 
extinctive and acquisitive. The former re- 



ferred to rights of action, which, for the 
most part, were barred by tlie lapse of 
thirty years. The latter had regard to the 
mode of acquiring property by long and 
uninterrupted possession ; and" this, in the 
case of immovable or real property, was 
limited, inter prcesentes, to ten years, and, 
inter absentes, to twenty years. Tlie stu- 
dent will find this doctrine fully discu.«sed 
in ]\Iackeldey's Compendium of Modern 
Civil Law, vol. i. pp. 200-205, 290, et seq. 
(Amcr. ed.), with the learned notes of 
I)r. Kaufman. See also Novel. 119, c. 7, 
8. [See also post, vol. ii. §§ 537-546, tit. 
Pkescriptiox.] 

^ Tyler v. Wilkinson, 4 Mason, 397, 
402; Ingraham v. Hutchinson, 2 Conn. 
584; Bealey v. Shaw, 6 East, 208,215; 
Wright V. Howard, 1 Sim. & Stu. 190, 
203; Strickler v. Todd, 10 Serg. & Uawle, 
63, 69; Balston v. Bensted, 1 Campb. 
463, 405; Daniel v. North, 11 East, 371 ; 
Sherwood v. Burr, 4 Day, 244 ; Tinkhara 
V. Arnold, 3 Greenl. 120; Hill v. Crosby, 
2 Pick. 466. See Best on Presumptions, 
p. 103, n. (m) ; Bolivar Manuf. Co. v. 
Neponset Manuf. Co., 16 Pick. 241. See 
s.ho post, vol. ii. §§ 537-546, tit. Presckip- 
Tioy. 

3 Ricard r. Williams, 7 Wheat. 109; 
Prop'rs of Brattle-Street Church v. Bill- 
iard, 2 Met. 363. 



•24 



LAW OF EVIDENCE. 



[PAUT I. 



common law. The possession of lands, however, for a shorter 
period, when coupled with other circumstances indicative of 
ownership, may justify a jury in finding a grant ; but such cases 
do not fall within this class of presumptions.^ 

§ 18. Natural consequences intended. Thus, also, a sane man 
is conclusively presumed to contemplate the natural and probable 
consequences of his own acts ; and, therefore, the intent to murder 
is conclusively inferred from the deliberate use of a deadly 
weapon.2 So, the deliberate publication of calumny, which the 
publisher knows to be false, or has no reason to believe to be 
true, raises a conclusive presumption of malice.^ So the neglect 



1 Summer v. Child, 2 Conn. 607, 628- 
632, per Gould, J.; Clark v. Faunce, 4 
Pick. 245. 

2 1 Russ. on Crimes, 658-6G0 ; Rex v. 
Dixon, 3 M. & S. 15; 1 Hale, P. C. 440, 
441 ; Britton, 50, § 6. But if death does 
not ensue till a year and a day (that is, a 
full year) after the stroke, it is conclu- 
sively presumed that the stroke was not 
the sole cause of the death, and it is not 
murder. 4 Bl. Comra. 197 ; Glassford on 
Evid. 592. The doctrine of presumptive 
evidence was familiar to the Mosaic 
Code, even to the letter of the principle 
stated in the text. Thus, it is laid down, in 
regard to the man-slayer, that " if he smite 
liim with an instrument of iron, so that he 
die ; "or, "if he smite him with throwing 
a, stone wherewith he may die, and he die;" 
or "if he smite him with a hand-weapon 
of steel wherewith lie may die, and he die, 
he is a murderer." See Numb. xxxv. 16, 
17. Here, every instrument of iron is 
conclusively taken to be a deadly weapon ; 
and the use of any such weapon raises a 
conclusive presumption of malice. The 
same presumption arose from hiing in atn- 
hush, and thence destroying another. Id. 
V. 20. But, in other cases, tlie existence 
of malice was to be proved, as one of the 
facts in the case ; and, in the absence of 
malice, the offence was reduced to the de- 
gree of manslaughter, as at the common 
law. Id. v. 22, 2;i This very reasonal)le 
distinction seems to have been unknown 
to the Gentoo Code, which demands life 
for life in all cases, except where the cul- 
pr.t is a Brahmin. " If a man deprives 
another of life, the magistrate shall de- 
prive that person of life." Ilalhed's 
Gentoo Laws, book 16, § 1, p. 2;W. 
Formerly, if the mother of an illegitimate 
child, recently born and found dead, con- 
cealed the fact of its birth and death, it 
was conclusively presumed that she mur- 
dered it. Stat. 21, Jac. I. c. 37 ; probably 



copied from a similar edict of Hen. II. of 
France, cited by Domat. But this un- 
reasonable and barbarous rule is now re- 
scinded, both in England imd America. 

The subject of implied malice, from 
the unexplained fact of killing with a 
lethal weapon was fully discussed in Com- 
monwealth V. York, y Met. 103, upon a 
difference of opinion among the learned 
judges, and the rule there laid down, in 
favor of the inference, was reaffirmed in 
Commonwealth v. Webster, 5 Cush. 305. 
[The doctrine of York's case, that, if 
it does not appear whether the killing 
was, as it may have been, accidental, in 
self-defence, in the heat of blood, or with 
deliberate malice, the law will presume 
the worst, is so contrary to the rule that 
the accused shall have the benefit of a 
doubt, and so repugnant to humanity 
that, although it is supported by vener 
able authority, there is a growing disin- 
clination to follow it at the present day. 
It is difficult to see how such law is 
either reasonable or humane. See Ben- 
nett & Heard's Leading Criminal Cases, 
vbl. i. p. 358 ; post, § 34 ; State i'. Mc- 
Donnell, 32 Vt. 491 ; State v. Patterson, 
45 Vt. 308. Wharton Horn. § 069. The 
intent to murder, conclusively presum- 
able from the deliberate use of a dead- 
ly weapon, as stated in the text, can 
hardly be the law now. Probably all 
that now would be conclusively presumed 
from such an act would be the intent to 
kill. To warrant the inference of murder, 
it must appear that the act is deliberate 
and unlawful. State r. Knight, 43 Maine, 
11; Stokes v. People, 53 N. Y. 664; 
Wharton on Homicide, §§ 660, (i7I. A 
prisoner is presumed to know the law, 
although he is a foreigner, and the offence 
with which he is charged is no offence in 
his own country, liex v. Esop, 7 C. & P. 
456; Barronet's case, 1 E. & B. 1.] 

3 Bodwell V. Osgood, 3 Pick. 379; 



CHAP. IV.] 



OF PRESUMPTIVE EVIDENCE. 



25 



of a party to appear and answer to process, legally commenced in 
a court of competent jurisdiction, he having been duly served 
therewith and summoned, is taken conclusively against him as a 
confession of the matter charged.^ 

§ 19. Records presumed correct. Conclusive presumptions are 
also made in favor of judicial proceedings. Thus the records 
of a court of justice are presumed to have been correctly made ; ^ 
a party to the record is presumed to have been interested in the 
6uit ; 3 and, after verdict, it will be presumed that those facts, 
without proof of which the verdict could not have been found, 
were proved, though they are not expressly and distinctly 
alleged in the record ; provided it contains terms sufficiently 
general to comprehend them in fair and reasonable intendment.* 
The presumption will also be made, after twenty years, in favor 
of every judicial tribunal acting within its jurisdiction, that all 



Haire v. Wilson, 9 B. & C. 643 ; Rex v. 
Shipley, 4 Doug. 73, 177, per Ash- 
hurst, J. [See also post, vol. ii. § 418.] 

1 2 Erskine, Inst. 780. Cases of this 
sort are generally regulated bj' statutes, 
or by the rules of practice established by 
the courts ; but the principle evidently 
belongs to a general jurisprudence. So 
is the Roman law. " Contuniacia, eorum, 
qui, jus dicenti non obtemperant, litis 
damno coercetur." Dig. lib. 42, tit. 1, 
1. 53. " Si citatus aliquis non compareatj 
habetur pro consentiente." Mascard, de 
Prob. vol. iii. p. 253, concl. 1159, n. 26. 
See further on this subject, infra, §§ 204- 
211. The right of the party to have 
notice of the proceedings against him, 
before his non-appearance, is taken as 
a confession of the matter alleged, has 
been distinctly recognized in the courts 
both of England and America, as a rule 
founded in the first principles of nat- 
ural justice, and of universal obligation. 
Fisher v. Lane, 3 Wils. 302, 303, per Lee, 
C. J. ; The Mary, 9 Cranch, 144, per Mar- 
shall, C. J. ; Bradstreet v. The Neptune 
Ins. Co., 3 Sumn. 607, per Story, J. 

- Reed v. Easton, 1 East, 365. "Res 
judicata pro veritate accipitur." Dig. 
lib. 50, tit. 17, 1. 207. [The proceedings 
of legislative bodies are presumed to have 
been regular, and according to law and 
usage. Gosset v. Howard, 10 Q. B. 411, 
It was the ancient maxim that the law 
knows no fraction of a day, and that 
legislative and judicial acts were to be 
presumed to have been in force on every 
part of the day on whicli they were 
fassed, the earliest moment as well as 



the latest. But that fiction no longer 
prevails when it becomes necessary for 
the purposes of justice to ascertain the 
exact hour or minute. 3 Chitty, Pr. Ill ; 
Ex parte D'Obree, 8 Ves. 83, note by 
Mr. Sumner; In re Richardson, 2 Story 
(C. Ct.), 571; Ferris v. Ward, 4 Gilra. 
(Hi.) 499 ; Lang v. Phillips, 27 Ala. 311 ; 
Whittaker v. Wisley, 9 Eng. L. & Eq. 45. 
But Judge Prentiss, In re Wellman, 20 
Vt. 693, denies that priorities will be 
considered, except in questions concern- 
ing private acts and transactions, and 
treats the whole subject with great learn- 
ing and ability, holding that the bankrupt 
law took effect at the earliest moment of 
the day on which it was approved.] 

3 Stein V. Bowman, 13 Pet. 209. 

* Jackson v. Pesked, 1 M. & S. 234, 
237, per Ld. Ellenborough ; Stephen on 
PI. 166, 167 ; Spiers v. Parker. 1 T. R. 
141 [Lathrop v. Stewart, 5 McLean, 1()7 ; 
Sprague v. Litherberry, 4 McLean, 442 ; 
Beale v. Commonwealth, 25 Penn. St. 
11 ; Hordiman v. Herbert, 11 Texas, 650. 
In pleading a discharge in bankruptcy, 
if the plea shows the District Court to 
have had jurisdiction, and to have pro- 
ceeded on the petition to decree the 
discharge, all the intermediate steps will 
be presumed to have been regularly 
taken. Morrison v, Woolson. 9 Foster, 
N. H. 510. But the court will not pre- 
sume there was jurisdiction in a case not 
according to the common law, — divorce 
for instance, — where the record does 
not show it. Com. v. Blood, 97 Mass, 
638.] 



26 



LAW OF EVIDENCE. 



[PAP.T 1. 



persons concerned had due notice of its proceedings.^ A like 
presumj)tion is also sometimes drawn from the solemnity of the 
act done, though not done in com-t. Thus a bond or other 
specialty is presumed to have been made upon good consideration^ 
.IS long as the instrument remains unimpeached.^ 

§ 20. Presumption from lapse of time, and from the act done. 
To this class of legal presumptions may be referred one of the ap- 
plications of the ride, " Ex diuturnitate temporis omnia prtesu- 
muuturrite et solenniter esse acta ; " namely, that which relates to 
transactions, which are not of record, the proper evidence of 
which, after the lapse of a little time, it is often impossible, or 
extremely difficult to produce. The rule itself is nothing more 
than the principle of the statutes of limitation, exj)ressed in a 
different form, and applied to other subjects. Thus, where an 
authority is given by law to executors, administrators, guardians, 
or other officers to make sales of lands, upon being duly licensed 
by the courts, and they are required to advertise the sales in a 
particular manner, and to observe other formalities in their pro- 
ceedings ; the lapse of sufficient time (which in most cases is 
fixdd at thirty years) ,^ raises a conclusive presumption that all 



1 Brown v. Wood, 17 Mass. 68. A 
former judgment, still in force, by a 
court of competent jurisdiction, in a 
suit between the same parties, is conclu- 
sive evidence, upon tiie matter directly 
in question in such suit, in any subse- 
quent action or proceeding. Ducliess of 
Kingston's case, 11 Howell, St. 2(31 ; Fer- 
rer's case, G Co. 7. The effect of judg- 
ments will be farther considered here- 
after. See infra, §§ 528-543. 

'^ Lowe V. Peers, 4 Burr. 2225. [But 
the amount may be questioned. Post, § 
26, n.] 

8 See Pejcpscot Prop'rs v. Ransom, 
14 Mass. 145; Blossom v. Cannon, Id. 
177; Colman v. Anderson, 10 Mass. 105. 
In some cases, twenty years has been 
held sufficient. As. in favor of the acts 
of sheriffs. Drouet v. Rice, 2 Rob. 
(La.) 374. So, after partition of lands 
by an incorporated land company, and 
a several ])ossession, accordingly, for 
twenty years, it was presumed that its 
meetings were duly notified. Society, 
&c. V. Wheeler, 1 N. H. 310 [see also 
King V. Little, 1 Cush. 436; Freeman 
V. Thayer, 33 Maine, 7G ; Cobleigh v. 
Young, 15 N. II. 403; Freeholders of 
Hudson Co V. State, 4 Zabr. 718; State 
t'. Lewis, 2 N. J. 504; Allegheny v. 
Nelson, 25 Penn. St. 332 ; Plunk-road 



Co. V. Bruce, 6 Md. 457; Emmons v. 
Oldham, 12 Texas, 18. Where nine 
3'ears before the commencement of tlie 
suit, a meeting of a proprietary had 
been called, on the application of certain 
persons representing themselves to be 
proprietors, it was held that tliere was 
no legal presumption that the petitioners 
for the meeting were jjroprietors, how- 
ever the rule might be as to ancient 
transactions, but that proof of some 
kind, to show the fact that they were 
proprietors, must be adiluced to sustain 
the issue. Stevens v. Taft, 3 Grav, 487] ; 
Williams i'. Eyton, 4 II. & N. 357; s. c. 
5 Jur. N. s. 770. [For other presumptions 
of this kind, not conclusive, see post, 
§ 38 a. Where the evidence fails to show 
affirmatively that an administrator's bond 
was approved in writing by the judge of 
probate, and the contrary does not ap- 
pear, — if the case discloses that all the 
other necessary steps were taken with 
strictness and accuracy : that tiie sale 
was public, that the purchaser entered 
immediately and has occupied for more 
than twenty years, that by law the bond 
must be approved i)efore filing, and that 
it was fileil, — the law will presume that 
all was done necessary U) give tiie ])ur- 
chaser a perfect title. Austin v. Austin, 
60 Maine, 74.] 



CHAP. IV.] or PKESmSIPTIVE EVIDENCB. 27 

the legal formalities of the sale were observed. The license to 
sell, as well as the official character of the party, being provable 
by record or judicial registration, must in general be so proved ; 
and the deed is also to be proved in the usual manner ; it is only 
the intermediate proceedings that are presumed. " Probatis extre- 
mis, prsesumuntur media."^ The reason of this rule is found in 
the great probability, that the necessary intermediate proceed- 
ings were all regularly had, resulting from the lapse of so long a 
period of time, and the acquiescence of the parties adversely ia- 
terested ; and in the great uncertainty of titles, as well as the 
other public mischiefs, which would result, if strict proof were 
required of facts so transitory in their nature, and the evidence 
of which is so seldom preserved with care. Hence, it does not 
extend to records and public documents, which are supj)osed 
always to remain in the custody of the officers charged with their 
preservation, and wliich, therefore, must be proved, or their loss 
accounted for, and supplied by secondary evidence.^ Neither 
does the rule apply to cases of prescription.^ 

§ 21. Ancient instruments presumed to be genuine. The same 
principle applies to the proof of the execution of ancient deeds 
and ivills. Where these instruments are more than thirty years 
old, and are unblemished by any alterations, they are said to 
prove themselves ; the bare production thereof is sufficient : the 
subscribing witnesses being presumed to be dead. This pre- 
sumption, so far as this rule of evidence is concerned, is not 
affected by proof that the witnesses are living.* But it must 
appear that the instrument comes from such custody as to afford 
a reasonable presumption in favor of its genuineness ; and that it 

1 2 Erskine, Inst. 782 ; Earle v. Baxter, Rex v. Long, Buckby, 7 East, 45 ; McKe- 

2 W. Bl. 1228. Proof that one's ancestor nire v. Frazer, 9 Ves. 5 ; Oldnall v. Deakin, 

sat in the House of Lords, and that no 3 C. & P. 402 ; Jackson v. Blanshan, 3 

patent can be discovered, affords a pre- Johns. 292 ; Winn v. Patterson, 9 Peters, 

sumption that he sat by sununons. Tlie 674, 675; Bank United States v. Dan- 

Braye Peerage, 6 CI. & Fin. 657. See dridge, 12 Wheat. 70, 71 ; Ilentliorne v. 

also, as to presuming the autliority of Doe, 1 Blaekf. 157 ; Bennet v. Runyon, 

an executor, Piatt v. McCuUough, 1 Mc- 4 Dana, 422, 424; Cook v. Totten, 6 

Lean, 73. Dana, 110 ; Thurston v. Masterson, 9 

- Brunswick v. McKeen, 4 Greenl. Dana, 233; Hynde y. Vattiere, 1 McLean, 

508 ; Hathaway y. Clark, 5 Pick. 490. 115; Walton v. Coulson, Id. 124; Nor- 

3 Eldridge I'. Knott, Cowp. 215; Mayor thrope v. Wright, 24 Wend. 221 [King 

of Kingston w. Horner, Id. 102. v. Little, 1 Cush. 436 ; Settle v. Allison, 8 

* Bex V. Farringdon, 2 T. R. 471, per Geo. 201. The thirty years to be reck- 

Buller, J. ; Doe i'. WoUey, 8 B. & C. 22 ; . oned from the time of the testator's 

Bull. N. P. 255 ; 12 Vin. Abr. 84 ; Gov. death. Jackson ». Blanshan, ubi s\i- 

&c. of Chelsea Waterworks v. Cowper, 1 pra\. 
Esp. 275; Rex v. Ryton, 5 T. R. 259; 1 



28 LAW OF EVIDENCE. [PAET L 

is otherwise free from just grounds of suspicion ; ^ and, in the case 
of a bond for the payment of money, there must be some indorse- 
ment of interest, or other mark of genuineness, within the thirty 
years, to entitle it to be read.^ Whether, if the deed be a con- 
veyance of real estate, the party is bound first to show some acts 
of possession under it, is a point not perfectly clear upon the 
authorities ; but the weight of opinion seems in the negative, as will 
hereafter be more fully explained.^ But after an undisturbed 
possession for thirty years, of any property, real or personal, it is 
too late to question the authority of the agent, who has undertaken 
to convey it,* unless his authority was by matter of record. 

§ 22. Presumption from acts and recitals in deeds. Estoppel. Es- 
toppels may be ranked in this class of presumptions. A man is 
said to be estopped, when he has done some act, which the policy 
of the law will not permit him to gainsay or deny. " The law of 
estoppel is not so unjust or absurd as it has been too much the 
custom to represent." ^ Its foundation is laid in the obligation 
which every man is under to speak and act according to the truth 
of the case, and in the policy of the law, to prevent the great 
mischiefs resulting from uncertainty, confusion, and want of con- 
fidence, in the intercourse of men, if they were permitted to deny 
that which they have deliberately and solemnly asserted and 
received as true. If it be a recital of facts in a deed, there is 
implied a solemn engagement that the facts are so as they are 
recited. The doctrine of estoppels has, however, been guarded 
with great strictness ; not because the party enforcing it neces- 
sarily wishes to exclude the truth, — for it is rather to be supposed 
that that is true which the opposite party has already solemnly 
recited, — but because the estoppel may exclude the truth. Hence, 
estoppels must be certain to every intent ; for no one shall be 
denied setting up the truth, unless it is in plain and clear contra- 
diction to his former allegations and acts.^ 

' Roe V. Rawlings, 7 East, 279, 291 ; possession of thirty-five years, tinder a 

12 Vin. Abr. 84 Kvid. A, b. 6; infra, legislative grant, it was held conclusive 

§§ 142, 670; Swinnerton v. Marquis of evidence of a good title, though the 

Stafford, 3 Taunt. 91 ; Jackson v, Davis, grant was unconstitutional. Trustees 

6 Cowcn, 123; Jackson v. Luquere, Id. of the Episcopal Church in Ncwbern v. 

221 ; Doe v. Beynon, 4 1'. & D. 193 ; Doe Trustees of Ne wbern Academy, 2 Hawks, 

V. Samples, 3 Nev. & P. 254. 233. 

a Forbes v. Wale, 1 \V. Bl. 532; 1 Esp. » Per Taunton, J., 2 Ad. & El. 291. 

278, 8. c. infra, §§ 121, 122. .[See Cruise's Dig. (Greenl. 2d ed.) tit. 

8 Infra, § 144, n. (1). 32, c. 20, § 64, n. (Greenl. 2d ed. vol. 

* Stockbridge v. West Stockbridge, ii. p. Oil.)] 

U Mass. 257. Where there had been a »* Bowman v. Taylor, 2 Ad. & El. 278ii 



CHAP, rv.] 



OF PEESUaiPTIVE EVIDENCE. 



29 



§ 23. Same subject. In regard to recitals in deeds, the general 
rule is that all parties to a deed are bound by the recitals therein,^ 
•which operates as an estoppel, working on the interest in tlie 
land, if it be a deed of conveyance and binding both parties and 
privies ; privies in blood, privies in estate, and privies in law. 
Between such parties and privies, the deed or other matter 
recited needs not at any time be otherwise proved, the recital of 
it in the subsequent deed being conclusive. It is not offered as 
secondary, but as primary evidence, which cannot be averred 
against, and which forms a muniment of title. Thus, the recital 
of a lease, in a deed of release, is conclusive evidence of the exist- 
ence of the lease against the parties, and all others claiming 
under them in privity of estate.^ 



289, per Ld. C. J. Denman ; Id. 291, per 
Taunton, J. ; Lainson v. Tremere, 2 Ad. 
& El. 792 ; Pelletrau v. Jackson, 11 Wend. 
117 ; 4 Kent, Comm. 261, note ; Carver v. 
Jackson, 4 Peters, 83. [It must also ap- 
pear that the party pleading the estop- 
pel is or may he prejudiced by the act 
on which he claims to estop. Nourse v. 
Nourse, 116 Mass. 101 ; Security Ins. Co. 
V. Fay, 22 Mich. 467 ; Bank of Hindustan 
V. Alison, L. K. 6 C. P. 227. Estoppels, 
by matter of record and by deed, will 
not operate conclusively unless they be 
expressly pleaded when an opportunity 
of pleading them has been afforded. 
Bradley v. Beckett, 7 M. & G. 994. See 
also 2 Smith's Lead. Cas. 670 et seq. If 
not pleaded, they will be presumed to be 
waived. Outram v. Morewood, 3 East, 
346; Matthew v. Osborne, 13 C. B. 919; 
AVilson V. Butler, 4 Bing. N. C. 748; 
Young V. Raincock, 7 C. B. 310. If, how- 
ever, no opportunity has been afforded to 
plead, they may be offered in evidence 
with the same effect as if pleaded. Adams 
V. Barnes, 17 Mass. 365; Trevivan v. 
Lawrence, 1 Salk. 276 ; Lord Feversham 
V. Emerson, 11 Exch. 385.] 

1 But it is not true, as a general propo- 
sition, that one claiming land under a 
deed to which he was not a party, adopts 
the recitals of facts in an anterior deed, 
which go to make up his title. There- 
fore, where, by a deed made in January, 
1796, it was recited that S. became bank- 
rupt in 1781, and that, by virtue of the 
proceedings under the commission, cer- 
tain lands had been conveyed to W., and 
thereupon W. conveyed the same lands 
to B. for the purpose of enabling him to 
make a tenant to the prcecipe ; to which 
deed B. was not a party ; and afterwards, 
in February, 1796, B. by a deed, not re- 



ferring to the deed last mentioned, nor 
to the bankruptcy, conveyed the prem- 
ises to a tenant to the prcecipe, and de- 
clared the uses of the recovery to be to 
his mother for life, remainder to himself 
in fee; it was held that B., in a suit re- 
specting other land, was not estopped 
from disputing S.'s bankruptcy. Doe v. 
Slielton, 3 Ad. & El. 265, 283. If the 
deed recite that the consideration was 
paid by a husband and wife, parol evi- 
dence is admissible to show that the 
money consisted of a legacy given to the 
M'ife. Doe v. Statham, 7 D. & Ky. 141. 

2 Shelly V. Wright, Willes, 9 ; Crane 
V. Morris, 6 Peters, 611 ; Carver v. Jack- 
son, 4 Peters, 1, 83; Cossens v. Cossens, 
Willes, 25. But such recital does not 
bind strangers, or those who claim by 
title paramount to the deed. It does 
not bind persons claiming by an adverse 
title, or persons claiming from the par- 
ties by a title anterior to the date of the 
reciting deed. See Carver v. Jackson, 
ubi supra. In this case, the doctrine of 
estoppel is very fully expounded by Mr. 
Justice Story, where, after stating the 
general principle, as in the text, with 
the qualification just mentioned, he pro- 
ceeds (p. 8-3) as follows: "Such is the 
general rule. But there are cases iu 
which such a recital may be used as evi- 
dence even against strangers. If, for 
instance, there be the recital of a lease 
in a deed of release, and in a suit against 
a stranger the title under the release 
comes in question, there the recital of 
the lease in such a release is not per se 
evidence of the existence of the leaje. 
But if the existence and loss of the lease 
be established by other evidence, there 
the recital is admissible, as secondary 
proof, in the absence of more perfect 



30 



LAW OF EVIDENCE. 



[PAET I. 



§ 24. Estoppel. Thus, also, a grantor is, in general, estopped by 
his deed from denying that he had any title in the thing granted. 



evidence, to establish the contents of the 
lease ; and if the transaction be an an- 
cient one, and the possession has been 
long lield under such release, and is not 
otherwise to be accounted for, tliere the 
recital will of itself, under sucli circum- 
Btances, materially fortify the presump- 
tion, from lapse of time and length of 
possession, of the original existence of 
the lease. Leases, like other deeds and 
grants, may be presumed from long pos- 
session, which cannot otherwise be ex- 
plained ; and, under such circumstances, 
a recital of the fact of such a lease in an 
old deed is certainly far stronger pre- 
sumptive proof in favor of such posses- 
sion under title, than the naked presump- 
tion arising from a mere unexplained 
possession. Such is the general result 
of the doctrine to be found in tlie best 
elementary writers on the subject of 
evidence. It may not, however, be un- 
important to examine a few of the au- 
thorities in support of the doctrine on 
which we rely. The cases of Marchioness 
of Anandale v. Harris, 2 P. Wnis. 432, and 
Slielly V. Wright, Willes, 9, are suffi- 
ciently direct, as to the operation of re- 
citals by way of estoppel between the 
parties. In Ford v. Gray, 1 Salk. 285, 
one of the points ruled was 'that a re- 
cital of a lease in a deed of release is 
good evidence of such lease against the 
releasor, and those who claim under him; 
but, as to others, it is not, without prov- 
ing that there was such a deed, and it 
was lost or destroyed.' The same case 
is reported in G Mod. 44, where it is said 
that it was ruled, ' that the recital of a 
lease in a deed of release is good evi- 
dence against the releasor, and those 
that claim under him.' It is then stated, 
that 'a fine was produced, but no deed 
declaring the uses ; but a deed was oifercd 
in evidence, whicii did recite a deed of 
limitation of the uses, and the question 
was, whetlier that [recital] was evidence; 
and tiie court said, that the bare recital 
was not evidence ; but that, if it could be 
proved that such a deed had been [exe- 
cuted], an J [is] lost, it would do if it 
were recited na another.' This was, 
doubtless, the same point asserted in the 
latter clause of the report in Salkeld ; 
and, thus explained, it is perfectly con- 
sistent with the statement in Salkeld ; 
and must be rcferreil to a case where the 
recital was offered as evi<k'nce against a 
stranger. In any other point of view, it 
would be inconsistent with the preceding 



propositions, as well as with the cases in 
2 P Williams and Willes. In Trevivan 
V. Lawrence, 1 Salk. 276, the court held, 
that the parties and all claiming under 
them were estopped from asserting that 
a judgment, sued against the party as of 
Trinity term, was not of that term, but 
of another term ; that very point having 
arisen and been decided against the 
party upon a scire facias on the judg- 
ment. But the court there held (wliat 
is very material to the present purpose), 
that, ' if a man make a lease by indenture 
of D in which he hath nothing, and after- 
wards purchases D in fee, and afterwards 
bargains and sells it to A and his heirs, 
A shall be bound by this estoppel ; and, 
that where an estoppel works on the in- 
terest of the lands, it runs with the land 
into whose hands soever the land comes ; 
and an ejectment is maintainable upon 
the mere estoppel.' This decision is im- 
portant in several respects. In the first 
place, it shows that an estoppel may 
arise by implication from a grant, that 
the party hath an estate in the land, 
which he may convey, and he shall be 
estopped to deny it. In the next place, 
it siiows that such estoppel binds all per- 
sons claiming the same land, not only 
under the same deed, but under any 
subsequent conveyance from the same 
party ; that is to say, it binds not merely 
privies in blood, but privies in estate, as 
subsequent grantees and alienees. In 
the next place, it shows that an estop- 
pel, whicli (as the phrase is) works on 
the interest of the land, runs with it, into 
whosesoever hands the land conies. The 
same doctrine is recognized by Lord 
Cliief Baron Comyns, in his Digest, Es- 
toppel, B & E, 10. In the latter place 
(E, 10) he puts the case more strongly; 
for he asserts, that the estopjiel binds, 
even though all the facts are found in a 
special verdict. ' But,' says ho, and he 
relies on his own authority, ' where an 
estoppel binds the estate and converts it 
to an interest, the court will adjudge ac- 
cordingly. As if A leases land to B for 
six years, in whicli he has nothing, and 
then purchases a lease of the same land 
for twenty-one years, and afterwards 
leases to C for ten years, and all this is 
found l)y a verdict ; the court will ad- 
judge tlie lease to B good, though it be 
so only by conclusion.' A doctrine simi- 
lar in principle was asserted in this court, 
in Terrett v. Taylor, 9 Cranch, 52. The 
distinction, then, which was urged at the 



CHAP. IV.] 



OF PEESUMPTIVE EVIDENCE. 



31 



But this rule does not apply to a grantor acting officially, as a public 
agent or trustee.^ A covenant of warranty also estops the grantor 
from setting up an after-acquired title against the grantee, for it 
is a perpetually operating covenant ; ^ but he is not thus estopped 



bar, that an estoppel of this sort binds 
tliose claiming under the same deed, but 
not those claiming by a subsequent deed 
under tlie same party, is not well founded. 
All privies in estate bj' a subsequent deed 
are boimd in tlie same manner as privies 
in blood ; and so, indeed, is the doctrine 
of Comyns's Digest, Estoppel B, and in 
Co. Lit. 352 a. We ;nay now pass to a 
short review of some of the American 
cases on this subject. Denn v. Cornell, 

3 Johns. Cas. 174, is strongly in point. 
There, Lieutenant-governor Golden, in 
1775, made his will, and in it recited that 
he had conveyed to bis son David his 
lands in the township of Flushing, and 
he then devised his other estate to his 
sons and daughters, &c., &c. Afterwards, 
David's estate was confiscated under the 
act of attainder, and the defendant in 
ejectment claimed under that confisca- 
tion, and deduced his title from the State. 
No deed of the Flushing estate (the land 
in controversy) was proved from the 
father ; and the heir at law sought to 
recover on that ground. But the court 
held that the recital in the will, that the 
testator had conveyed the estate to 
David, was an estoppel of the heir to 
deny tliat fact, and bound the estate. In 
this case, the estoppel was set up by the 
tenant claiming under the State, as an 
estoppel running with the land. If the 
State or its grantee might set up the es- 
toppel in favor of their title, then, as 
estoppels are reciijrocal, and bind both 
parties, it might have been set up against 
the State or its grantee. It has been said 
at the bar, that the estate is not bound 
by estoppel by any recital in a deed. 
That may be so where the recital is in 
his own grants or patents, for they are 
deemed to be made upon suggestion of 
the grantee. (But see Commonwealth 
V. Pejepscot Proprietors, 10 Mass. 155.) 
But where the State claims title under 
tlie deed, or other solemn acts of third 
persons, it takes it cum. onere, and sub- 
ject to all the estoppels running with the 
title and estate, in the same way as other 
privies in estate. In Penrose v. Griffith, 

4 Binn. 231, it was held that recitals in 
a patent of the Commonwealth were evi- 
dence against it, but not against persons 
claiming by a title paramount from the 
Commonwealth. The court there said, 
that the rule of law is that a deed con- 



taining a recital of another deed is evi- 
dence of the recited deed against the 
grantor, and all persons claiming by title 
derived from him subsequently. The 
reason of the rule is, that the recital 
amounts to the confession of the party ; 
and that confession is evidence against 
himself, and those who stand in his place. 
But such confession can be no evidence 
against strangers. The same doctrine 
was acted upon and confirmed by the 
same court, in Garwood v. Dennis, 4 
Binn. 314. In that case, the court further 
held that a recital in another deed was 
evidence against strangers, where the 
deed was ancient and the possession was 
consistent with the deed. That case 
also had the peculiarity belonging to the 
present, that the possession was of a 
middle nature; that is, it might not have 
been held solely in consequence of the 
deed, for the party had another title : but 
there never was any possession against it. 
There was a double title, and the ques- 
tion was, to which the possession might 
be attributable. The court thought that, 
a suitable foundation of the original ex- 
istence and loss of the recited deed being 
laid in the evidence, the recital in the 
deed was good corroborative evidence, 
even against strangers. And other au- 
thorities certainly warrant this decision." 
[Nor does the rule of estoppel apply to 
any other parts of the deed than those 
actually recited. If any other part is 
relied upon, it must be proved. Gillett v. 
Abbott, 7 A. & E. 783. A recital, in a 
statute, of a previous grant by the State 
is prima fade evidence at least of a grant 
as against the State. Lord v. Bigclow, 8 
Vt. 460 ; State v. Beard, 1 Ind. 460. A 
recital in an approved bond that the ob- 
ligor, the plaintiff, is licensed to sell in- 
toxicating liquors, is evidence of that fact 
in his favor if the bond be put in by the de- 
fendant. Wells V. Greeley, 50 Maine. 78. 
The acceptance of a deed by a grantee 
makes the recitals evidence against him, 
but not against a botia Jide purchaser 
from him without notice, as where the 
deed to the grantee was not recorded 
before the purchase. Schuylkill, Slc, Ins. 
Co. V. McCrearv, 58 Penn. 304.] 

1 Fairtitle v.' Gilbert, 2 T. R. 171 ; Co. 
Lit. 363 b. 

' Terrett v. Taylor, 9 Cranch, 43; 
Jackson v. Matsdorf, 11 Johns. 97 ; Jack- 



32 LAW OF EVIDENCE. [PAET I. 

by a covenant, that he is seised in fee and has good right to con- 
vey ; 1 for any seisin in fact, though by wrong, is sufficient to 
satisfy this covenant, its import being merely tliis, that he has 
the seisin in fact, at the time of conveyance, and thereby is quali- 
fied to transfer the estate to the grantee.^ Nor is a feme covert 
estopped, by her deed of conveyance, from claiming the land by 
a title subsequently acquired ; for she cannot bind herself per- 
sonally by any covenant.^ Neither is one who has purchased 
land in his own name, for the benefit of another, which he has 
afterwards conveyed by deed to his employer estopped by such 
deed, from claiming the land by an elder and after-acquired title.* 
Nor is the heir estopped from questioning the validity of his 
ancestor's deed, as a fraud against an express statute.^ The 
grantee, or lessee, in a deed-poll, is not, in general, estopped 
from gainsaying any thing mentioned in the deed ; for it is the 
deed of the grantor or lessor only ; yet if such grantee or lessee 
claims title under the deed, he is thereby estopped to deny the 
title of the grantor.^ 

§ 25. Same subject. It was an early rule of feudal policy, that 
the tenant should not be permitted to deny the title of the lord, 
from whom he had received investiture, and whose liegeman he 
had become ; but, as long as that relation existed, the title of the 
lord was conclusively presumed against the tenant, to be perfect 
and valid. And though the feudal reasons of the rule have long 
since ceased, yet other reasons of public policy have arisen in 
their place, thereby preserving the rule in its original vigor. A 
tenant, therefore, by indenture, is not permitted, at this day, to 
deny the title of his lessor, while the relation thus created sub- 
sists. It is of the essence of the contract under which he claims, 



son V. "Wright, 14 Johns. 183; McWil- followed in some of the other States, 

liams V. Nisby, 2 Scrg. & Ravvl. 515; where it is held that covenants of seisin 

Somes V. Skinner, 3 Pick. 52. [See Blanch- bind the party to show that he had good 

ard V. Ellis, 1 Gray, 105. And tlie title at the date of the covenant. See 

grantor's privies in estate are also cs- Richardson v. Dorr, 5 Vt. 9; Hosmer, 

topped, though the grantor had no title C. J., in Lockwood v. Sturdcvant, G 

when he conveyed. White r. Patten, 24 Conn. 373.] 

Pick. (Mass.) 324. Bat such a cove- * Jackson v. Vanderhayden, 17 Johns, 

nant does not estop the grantor from 167 [Lowell v. Daniels, 2 Gray, 101]. 

claiming a way of necessity over the land * Jackson v. Mills, 13 Johns. 463; 4 

granted. Brigham v. Smith, 4 Gray, 2!»7.] Kent, Comm. 200, 201, n. 

1 Allen V. Sayward, 5 Greenl. 227. » Doe v. Lloyd, 8 Scott, 03. 

2 Marston v. Ilobbs, 2 Mass. 4.33; » Co. Lit. 303 b; Goddard's case, 4 
Bearce v. Jackson, 4 Mass. 408; Twom- Co. 4. But he is not always concluded 
biy V. Henly, Id. 441 ; ChapcU r. Bull, 17 by recitals in anterior title-deeds. See 
Mass. 213. [These cases have not been supra, § 23, n. 



CHAP, rr.] OF PKESUlMPTrYE EVIDENCE. 33 

that tlie paramount ownership of the lessor shall be acknowledged 
during the continuance of the lease, and that possession shall be 
surrendered at its expiration. He could not controvert this title 
without breaking the faith which he had pledged.^ But this 
doctrine does not apply with the same force, and to the same 
extent between other parties, such as releasor and releasee, where 
the latter has not received possession from the former. In such 
cases, where the party already in possession of land, under a 
claim of title by deed, purchases peace and quietness of enjoy- 
ment, by the mere extinction of a hostile claim by a release, with- 
out covenants of title, he is not estopped from denying the validity 
of the title, which he has thus far extinguished.^ Neither is this 
rule applied in the case of a lease already expired ; provided the 
tenant has either quitted the possession, or has submitted to the 
title of a new landlord ; ^ nor is it applied to the case of a tenant, 
who has been ousted or evicted by a title paramount ; or who has 
been drawn into the contract by the fraud or misrepresentation 
of the lessor, and has, in fact, derived no benefit from the posses- 
sion of the land.* Nor is a defendant in ejectment estopped from 
showing tliat the party, under whom the lessor claims, had no title 
when he conveyed to the lessor, although the defendant himself 
claims from the same party, if it be by a subsequent conveyance.^ 
§ 26. Restricted to particulars. Tliis rule in regard to the con- 
clusive effect of recitals in deeds is restricted to the recital of 
things in particular, as being in existence at the time of the exe- 
cution of the deed ; and does not extend to the mention of things 
in general terms. Therefore, if one be bound in a bond, con- 
ditioned to perform the covenants in a certain indenture, or to 
pay the money mentioned in a certain recognizance, he shall not 
be permitted to say that there was no such indenture or recog- 

1 Com. Dig. Estoppel, A, 2 ; Craig, ted, directing his lessee in future to pay 
Jus. Feud, lib" 3, tit. 5, §§ 1, 2; Blight's the rent to the stranger; it was held, that 
Lessee v. Kochestcr, 7 Wheat. 535, 547. the lessor was estopped from afterwards 
[The assignee of a lease, who enters upon treating the lessee as his tenant ; and that 
and occupies the premises, is estopped the tenant, upon the lessor afterwards 
in an action for the rent, brought against distraining for rent, was not stopped to 
him by the original lessor, to deny the allege, that the right of the latter had 
validity of the assignment by the original expired. Downs v. Cooper, 2 Ad. & El. 
lessee to him. Blake v. Sanderson, 1 n. s. 252. 

Gray, 332.] 3 England r. Slade, 4 T. R. 681 ; Balls 

2 ITox v. "VYidgery, 4 Greenl. 214; u. Westwood, 2 Campb. 11. 

Blight's Lessee y."^ Rochester, 7 "Wheat. « Havne i\ Maliby, 3T.R.438; Hearn 

535, 547; Ham v. Ham, 2 Shepl. 351. r. Tomlin, Peake's Cas. 191. 
Thus, where a stranger set up a title to ^ Doe v. Payne, 1 Ad. & El. 538. 

the premises, to which the lessor submit- 



34 



LAW OF EVIDENCE. 



[part I. 



nizance. But if tlie bond be conditioned, that the obligor shall 
perform all the agreements set down by A., or carry away all the 
marl in a certain close, he is not estopped by this general condi- 
tion from saying, that no agreement was set down by A., or that 
there was no marl in the close. Neither does this doctrine apply 
to that which is mere description in the deed, and not an essen- 
tial averment: such as the quantity of land ; its natiu-e, whether 
arable or meadow ; the number of tons in a vessel chartered by 
the ton ; or the like ; for these are but incidental and collateral 
to the principal thing, and may be supposed not to have received 
the deliberate attention of the parties.-^ 



1 4 Com. Dig. Estoppel, A, 2 ; Yelv. 
227 (by JMetcalf),note (1); Doddington's 
case, 2 Co. 33; Skipworth v. Green, 8 
Mod. 311 ; s. c. 1 Stra. 610 [Carpenter v. 
Buller, 8 M. & W. 212]. Whether the 
recital of the payment of tlie consider- 
ation-money, in a deed of conveyance, 
falls within the rule, by which the party 
is estopped to deny it, or belongs to the 
exceptions, and therefore is open to op- 
posing proof, is a point not clearly agreed. 
In England, the recital is regarded as 
conclusive evidence of payment, binding 
the parties by estoppel. Shelly v. Wright, 
Willes, 9; Cossens v. Cossens, Id. 25; 
Rowntree v. Jacob, 2 Taunt. 141 ; Lara- 
pon I'. Corke, 5 B. & Ahl. OOG ; Baker v. 
Dewey, 1 B. & C. 704 ; Hill v. Manchester, 
and Salford Water Works, 2 B. & Aid. 
544. See also Powell v. Monson, 3 Mason, 
347, 351, 356. But the American courts 
have been disposed to treat the recital 
of the amoitnt of the money paid, like 
the mention of tlie date of the deed, the 
quantity of land, the amount of tonnage 
of a vessel, and other recitals of quantity 
and value, to which the attention of the 
parties is supposed to have been but 
slightly directed, and to which, there- 
fore, the principle of estoi)pels does not 
ai)i)Iy. Hence, thougli the party is es- 
topped from denying tiie conveyance, 
and that it was for a valuable consider- 
ation, yet the weight of Auierican au- 
tiiority is in favor of trea'ting the re- 
cital as only i>riiiia /((c/e*fevidence of the 
amount paid, in an flfltion of covenant 
by the grantee to i/cDVer back the con- 
sideration, or, in an action of assiiiiii>sit 
by the grantor, to recover the price 
which is yet unpaid. The principal 
cases are, — in Massachnxdls, Wilkinson 
r. Scott, 17 Mass. 240; Clapp i-. Tirrell, 
20 Pick. 247; Livcrmore r. Aldrich, 5 
Cush. 431 : in Maine, Schilenger v. Mc- 



Cann, 6 Greenl. 364; Tyler v. Carlton, 7 
Greenl. 175; Emiuons v. Littlefield, 1 
Sliepl. 233; Burbank v. Gould, 3 Shepl. 
118: in Vermont, Beach U.Packard, 10 
Verm. OG : in New liampsldre, Morse v. 
Shattuck, 4 New Hamp. 229; Pritchard 
V. Brown, Id. 397 : in Connecticut, BeldeQ 
r. Seymour, 8 Conn. 304: in Neiv York, 
Shepherd v. Little, 14 Johns. 210 ; Bowen 
v.BcW, 20 Johns. 388; Whitbeck ?-. Whit- 
beck, 9 Cowen, 2GG ; McCrea i\ Purmort, 
IG Wend. 4G0: in Pennsijlvanin, Wcigly 
V. Weir, 7 Serg. & Rawlc, 311 ; Watson v. 
Blaine, 12 Serg. & Rawle, 131 ; Jack v. 
Dougherty', 3 Watts, 151 : in Marijland, 
Higdon V. Thomas, 1 Har. & Gill', 139; 
Lingan v. Henderson, 1 Bland, Ch. 2oG, 
249: in Vinjinia, Duval v. Bihl), 4 Hen. 
& Munf. 113; Harvey v. Alexander, 1 
Randolph, 219: in South Carolina, Curry 
V. Lyles, 2 Hill, 404 ; Garret v. Stuart, 1 
McCord, 514 : in Alabama, Mead r. Ste- 
ger, 5 Porter, 498, 507 : in Tennessee, 
Jones V. Ward, 10 Ycrger, 100, 1G6: in 
Kentiickif, Hutchinson v. Sinclair, 7 Mon- 
roe, 291, 293; Gully v. Grubbs, 1 J.J. 
Marsh. 389. The courts in North Caro- 
lina seem still to hold the recital of pay- 
ment as conclusive. Brocket ;•. Foscue, 
1 Hawks, 64; Spiers v. Clav, 4 Hawks, 
22; Jones v. Sasser, 1 Dev."& Batt. 452. 
And in Louisiana, it is made so by legis- 
lative enactment. Civil Code of Louisi- 
ana, Art. 2234; Forest v. Shores, 11 
La. 416. See also Steele v. Worth- 
ington, 2 Ohio, 350 [and see Cruise's 
Dig. (Greenl. 2d ed.) tit. 32, c. 2, § 38, 
n. ; c. 20, § 52 n. (Greenl. 2d ed. vol. ii. 
pp. 322, G07.) But the recital is not 
even prima facie evidence of payment 
when the deed is attacked as fraudulent 
by creditors of the grantor. liolton v. 
Jacks, Robt. (N. Y.) 100; Whittaker v. 
Garuett, 3 Bush (Ky.), 402.] 



CHAP. IV.] PRESUMPTIVE EVIDENCE. 35 

§ 27. Admissions. In addition to estoppels by deed, there are 
two classes of admissions which fall under this head of conclu- 
sive presumptions of law; namely, solemn admissions, or admis- 
sions in judicio, wliich have been solemnly made in the course of 
judicial proceedings, either expressly, and as a substitute for 
proof of the fact, or tacitly, by pleading ; and unsolemn admis- 
sions, extra judicium, which have been acted upon, or have been 
made to influence the conduct of others, or to derive some advan- 
tage to the party, and which cannot afterwards be denied without 
a breach of good faith. Of the former class are all agreements 
of counsel, dispensing with legal proof of facts.^ So if a material 
averment, well pleaded, is passed over by the adverse party, 
without denial, whether it be by confession, or by pleading some 
other matter, or by demurring in law, it is thereby conclusively 
admitted.2 So also the payment of money into court, under a 
rule for that purpose, in satisfaction of so much of the claim as 
the party admits to be due, is a conclusive admission of the char- 
acter in which the plaintiff sues, and of his claim to the amount 
paid.2 The latter class comprehends, not only all those declara- 
tions, but also that line of conduct by which the party has induced 
others to act, or has acquired any advantage to himself.'^ Thus, 
a woman cohabited with, and openly recognized, by a man, as 
his wife, is conclusively presumed to be such, when he is sued 
as her husband, for goods furnished to her, or for other civil 
liabilities growing out of that relation.^ So where the sheriff 
returns any thing as fact, done in the course of his duty in the 
service of a precept, it is conclusively presumed to be true against 
him.^ And if one party refers the other to a third person for 
information concerning a matter of mutual interest in controversy 
between them, the answer given is conclusively taken as true, 
against the party referring.^ This subject will hereafter be more 
fully considered, under its appropriate title. ^ 

1 See infra, §§ 169, 170, 186, 20-4, 205; * See infra, §§ 184, 195, 196, 207, 208. 
Kohn V. Marsh, 3 Rob. (Louis.) 48. « Watson v. Threlkeld, 2 Esp. 607; 

2 Young V. Wright, 1 Campb. 139; Monro v. De Chemant, 4 Campb. 215; 
Wilson V. Turner, 1 Taunt. 308. But if Eobinson v. Nahon, 1 Campb. 345; post, 
a deed is admitted in pleading, there § 207. 

must still be proof of its identity. John- ^ Simmons v. Bradford, 15 Mass. 82. 
son V. Cottingham, 1 Armst. Macartn. & "^ Lloyd v. Willan, 1 Esp. 178 ; Deles- 
Ogle, 11. line V. Greenland,! Bay, 458; Williams 

3 Cox V. Parry, 1 T. R. 464 ; Watkins v. Innes, 1 Camp. 364 ; Burt v. Palmer, 5 
V. Towers, 2 T. R. 275 ; Griffiths v. Wil- Esp. 145. 

liams, 1 T. E. 710. [See infra, § 205, 8 See infra, §§ 169 to 212. 

vol. ii. § 600.] 



36 



LAW OF EVIDENCE. 



[PAUT I. 



§ 28. Infants and Married "Women. Conclusive presumptions of 
law are also made in respect to infants and onarried women. 
Thus, an infant under the age of seven years is conclusively 
presumed to be incapaljle of committing any felony, for want 
of discretion ; ^ and, under fourteen, a male infant is presumed 
incapable of committing a rape.^ A female under the age of ten 
years is presumed incapable of consenting to sexual intercourse.^ 
Where the husband and wife cohabited together, as such, and no 
impotency is proved, the issue is conclusively presumed to be 
legitimate, though the wife is proved to have been at ths same 
time guilty of infidelity.^ And if a wife act in company with 
her husband in the commission of a felony, other than treason 
or homicide, it is conclusively presumed, that she acted under 
his coercion, and consequently without any guilty intent.^ 

§ 29. Survivorship. Where the succession to estates is con- 
cerned, the question, which of two persons is to be presumed the 
survivor, where both perished in the same calamity, but the cir- 
cumstances of their deaths are unknown, has been considered in 
the Roman law, and in several other codes ; but in the common 
law, no rule on the subject has been laid down. By the Roman 
law, if it were the case of a father and son, perishing together in 
the same shipwreck or battle, and the son was under the age of 
puberty, it was presumed that he died first, but, if above that age, 
that he was the survivor ; upon the principle, that in the former 



1 4 Bl. Comm. 23. [See post, vol. 
iii. § 4.] 

2 1 Hal. P. C. 630; 1 Russell on 
Crimes, 801; Hex v. Phillips, 8 C. & 
P. 736 ; Rex v. Jordan, 9 C. & P. 118. 
But see post, vol. iii. §§ 4, 215]. 

3 1 Russell on Crimes, 810. 

4 Cope V. Cope, 1 Mood. & Rob. 269, 
270; Morris v. Davies, 3 C. & P. 215; St. 
George v. St. Margaret, 1 vSalk. 123; 
Banbury Peerage ease, 2 Selw. N. P. 
(1)V Wlieaton), 558; s. c. 1 Sim. and Stu. 
1 .53 ; Rex v. Lufte, 8 East, 193. [Sullivan 
V. Kelley, 3 Allen (Mass.), 148. See also 
post, vol. ii. § 150 and n.] But if they lived 
apart, though within sueh distance as 
aff'jrded an opportunity for intercourse, 
the j)resumption of legitimacy of the 
issue may be rebutted. Morris v. Davis, 
6 C & Fin. 103. Non-access is not pre- 
sume<l from the fact, that the wife lived 
in adultery with another; it must be 
proved nlinncU'.. Regina v. Mansfield, 1 
G. & Dav. 7. Post, § 81. 



5 4 Bl. Comm. 28, 29; Anon., 2 East, 
P. C. 559. [The better opinion now 
seems to be, that between the ages of 
seven and fourteen it is a question for 
a jury on the evidence, whether an in- 
fiiut has a guilty knowledge that he 
is doing wrong, whether he is on trial 
for a felonv or a misdemeanor. Russ. 
C. & M. 1-5 ; Rex v. Owen, 4 C. & P. 
236. But in cases not necessarily in- 
volving guilty knowledge, as under an 
indictment for non-repair of a road, such 
a question does not arise, and there is 
no i)rcsumption jirimn facie or otherwise 
that he is not guilty. Rex v. Sutton, 3 
A. & E. 517. So in the case of married 
women, the presumption of coercion is 
only jrrlnin fnrio subject to be controlled 
by evidence tliat tlie wife intervened 
voluntarily and not by compulsion. Rex 
V. Hughes, 2 Lewin.'C. C. 229; Rex i'. 
Pollard, 8 C. & P. 553; Reg.r. Stapleton, 
1 Jebb, C. C. 93. See also post, vol. iii. 
§§ 4, 7.] 



CHAP. IV.] PRESUMPTIVE EVIDENCE. 37 

case the elder is generally the more robust, and, in the latter, the 
younger.i xiie French code has regard to the ages of fifteen 
and sixty; presuming that of those under the former age the 
eldest survived; and that of those above the latter age the 
youngest survived. If the parties were between those ages, 
but of different sexes, the male is presumed to have survived ; 
if they were of the same sex, the presumption is in favor of the 
survivorsliip of the younger, as opening the succession in the 
order of nature.^ The same rules were in force in the territory 
of Orleans at the time of its cession to the United States, and 
have since been incorporated into the code of Louisiana." 

§ 30. Survivorship. This question first arose, in common-law 
courts, upon a motion for a ^nandamus, in the case of General 
Stanwix, who perished, together with his second wife, and his 
daughter by a former marriage, on the passage from Dublin to 
England; the vessel in which they sailed having never been 
heard from. Hereupon liis nephew applied for letters of admin- 
istration, as next of kin; which was resisted by the maternal 
uncle of the daughter, who claimed the effects upon the pre- 
sumption of the Roman law, that she was the survivor. But 
this point was not decided, the court decreeing for the nephcAV 
upon another ground ; namely, that the question could properly 
be raised only upon the statute of distributions,, and not upon 
an application for administration by one clearly entitled to ad- 
minister by consanguinity.* The point was afterwards raised in 
chancery, where the case was, that the father had bequeathed 
legacies to such of his children as should be living at the time 
of his death ; and he having perished, together with one of the 
legatees, by the foundering of a vessel on a voyage from India 

1 Dig. lib. 34, tit. 5; De rebus dubiis, misfortune." See Baillie's Moohummu- 
1. 9, §§ 1, 3; lb. 1. 16, 22, 2-3; Menocliius dan Law of Inheritance, 172. Such ali-o 
de Prsesumpt. lib. 1, Qusest. x. n. 8, 9. was the rule of the ancient Danish law. 
Tills rule, however, was subject to some " Filius in coraraunione cum patre et 
exceptions for the benefit of mothers, matre denatus, pro non nato habetur." 
patrons, and beneficiaries. Ancher, Lex Cimbrica, lib. 1, c. 9, p. 21. 

2 Code Civil, §§ 720,721, 722; Duran- 3 Civil Code of Louisiana, art. 930- 
ton, Cours de Droit Fran(;ais, torn. vi. pp. 933; Digest of the Civil Laws of the 
39, 42, 43, 48, 67, 69 ; Rogron, Code Civil Territory of Orleans, art. 60-63. 
Expli. 411, 412; Toullier, Droit Civil 4 Rex i;. Dr. Hay, 1 W. Bl. 640. The 
Pran9ais, torn. iv. pp. 70, 72, 73. By the matter was afterwards compromised, 
Mahometan law of India, when relatives upon the recommendation of Lord Mans- 
thus perish together, " it is to be pre- field, who said he knew of no legal prin- 
sumed that they all died at the same ciple on which he could decide it. Sea 
moment, and the property of each shall 2 Phillim. 268, in n. ; Fearne's Posth. 
pass to his living heirs, without any per- Works, 38. 

tion of it vesting in his companions ia 



38 



LAW OF EVIDEKCE. 



[PAET I. 



to England, the question was, whether the legacy was lapsed by 
the death of the son in the lifetime of the father. The Mastei 
of the Rolls refused to decide the question by presumption, and 
directed an issue, to try the fact by a jury.i But the Preroga- 
tive Court adopt the presumption, that both perished together, 
and that therefore neither could transmit rights to the other.^ 
In the absence of all evidence of the particular circumstances of 
the calamity, probably this rule will be found the safest and most 
convenient ; ^ but if any circumstances of the death of either party 
can be proved, there can be no inconvenience in submitting the 
question to a jury, to whose province it pecuharly belongs. 

§ 31. Presumptions to the law of nations. Conclusive presump- 
tions of law are not unknown to the laiv of nations. Thus, if a 
neutral vessel be found carrying despatches of the enemy between 
different parts of the enemy's dominions, their effect is presumed to 
be hostile.* The spoliation of papers, by the captured party, has been 
regarded, in all the States of Continental Europe, as conclusive 
proof of guilt ; but, in England and America, it is open to explana- 
tion, unless the cause labors under heavy suspicions, or there is 
a vehement presumption of bad faith or gross prevarication.^ 

§ 32. Based on expediency. In these cases of conclusive pre- 
sumption, the rule of law merely attaches itself to the circumstances, 
when proved ; it is not deduced from them. It is not a rule of in- 



1 Mason v. Mason, 1 Meriv. 308. 

2 Wright V. Netlierwood, 2 Salk. 593, 
n. (a) by Evans; more fully reported 
under the name of Wright v. Sannuda, 
2 Pliillim. 2G6-277, n. (c) ; Taylor i;. Dip- 
lock, 2 Phillim. 261, 278, 280 ; Selwyn's 
case, 3 Hagg. Eccl. 748. In the goods 
of Murray, 1 Curt. 596; Satterthwaite v. 
Powell, 1 Curt. 705. See also 2 Kent's 
Coinm. 435, 436 (4th ed.), n. (b). In 
the brief note of Colvin v. II. M. Proc- 
urator-Gen., 1 Hagg. Eccl. 92, wliere the 
husband, wife, and infant child (if any) 
perished together, the court seem to 
have lield, that the prima facie presump- 
tion of law was that the husband sur- 
vived. But the point was not much 
moved. It was also raised, but not dis- 
posed of, in Mcehring v. Mitchell, 1 Barb. 
Ch. 264. The subject of presumed sur- 
vivorship is fully treated by Mr. Burge, 
in his Commentaries on Colonial and 
Foreign Laws, vol. iv. pp. 11-29. In 
Chancery it has recently been held, that 
a presumption of priority of death miglit 
be raised from the comparative age, 
health, and strength of the parties ; and, 



therefore, where two brothers perished 
by shipwreck, the circumstances being 
wholly unknown, the elder being the 
master and the yoimger the second mate 
of the ship, it was presumed that tlie 
latter died first. Sillick v. Booth, 1 Y. 

6 C. New Cas. 117. [In Underwood v. 
Wing, 31 Eng. Law & Eq. 293, where a 
husband, wife, and children were swept 
from tlie deck of a vessel by the same 
wave, and went down together, it was 
held that, in the absence of evidence, the 
court would not presume that the hus- 
band survived the wife. s. c. affirmed, 
4 De Gex, M. & G. 1. Courts of probate, 
equity, and law alike refuse to presume 
simultaneous death or survivorship in 
the absence of evidence. Wing v. An- 
grave, 8 H. of L. 183; Smith v. Crown, 

7 Fla. 81.] 

8 It was so held in Coye v. Leach, 8 
Mete. 371. And see Mcehring v. Mitchell, 
1 Barb. Ch. 264. 

4 The Atalanta, 6 Pob. Adm. 440. 

6 The Pizarro, 2 Wheat. 227, 241, 242, 
n. (e) ; The Hunter, 1 Dods. Adm. 480, 
486. 



CHAP. I\'.] PRESU:\rPTIYE EVIDENCE. 89 

ference from testimony ; but a rule of protection, as expedient, 
and for the general good. It does not, for example, assume that all 
landlords have good titles ; but that it will be a public and general 
inconvenience to suffer tenants to dispute them. Neither does it 
assume, that all averments and recitals in deeds and records are 
true ; but that it will be mischievous, if parties are permitted to deny 
them. It does not assume that all simple contract debts, of six 
years' standing, are paid, nor that every man, quietly occupying 
land twenty years as his own, has a valid title by grant ; but it 
deems it expedient that claims, opposed by such evidence as the 
lapse of those periods affords, should not be countenanced, and 
that society is more benefited by a refusal to entertain such 
claims, than by suffering them to be made good by proof. In 
fine, it does not assume the impossibility of things which are 
possible ; on the contrary, it is founded, not only on the possibil- 
ity of their existence, but on their occasional occurrence ; and it 
is against the mischiefs of their occurrence that it interposes its 
protecting prohibition.^ 

§ 33. Disputable presumptions. The SECOND CLASS of presump- 
tions of law, answering to the prcesumptiones juris of the Roman 
law, which may always be overcome by opposing proof,^ consists of 
those termed disputable presumptions.^ These, as well as the for- 
mer, are the result of the general experience of a connection be- 
tween certain facts, or things, the one being usually found to be the 
companion or the effect of the other. The connection, however, 
in this class, is not so intimate, nor so nearly universal, as to render 
it expedient that it should be absolutely and imperatively pre- 
sumed to exist in every case, all evidence to the contrary being re- 
jected ; but yet it is so general, and so nearly universal, that the 
law itself, without the aid of a jury, infers the one fact from 
the proved existence of the other, in the absence of all opposing 
e\ddence. In this mode, the law defines the nature and amount 
of the evidence which it deems sufficient to establish a p)rima 

1 See 6 Law Mag. 348, 355, 356. direct evidence of the other, but, the one 

2 Heinnec. ad Pand. pars iv. § 124. fact existing and being proved, the law 
8 [Presumptions are of two kinds, — raises an artificial presumption of the 

natural, and legal or artificial. The existence of the other. Ewing, J., Gulick 

natural presumption is, when a fact is v. Loden, 1 Green (N. J.), 68. When tes- 

proved wherefrora, by reason of the con- timony is equally consistent with two 

nection, founded on experience, the exist- things, it proves neither. Bramwcll, B., 

ence of another fact is directly inferred, in Ellis v. Great West. R. R. C«. , 9 L. R. 

The legal or artificial presumption is, C. P. 551.] 
when the existence of one fact is not 



40 LAW or EVIDENCE. [PAET I. 

facie case, and to throw the burden of proof on the other party ; 
and, if no opposing evidence is offered, the jury are bound to 
find in favor of the presumption. A contrary verdict would 
be liable to be set aside, as being against evidence.^ 

§ 34. Based on expediency. The rules in this class of presump- 
tions, as in the former, have been adopted by common consent, from 
motives of public policy, and for the promotion of the general good ; 
yet not, as in the former class, forbidding all further evidence ; but 
only excusing or dispensing with it, till some proof is given on the 
other side to rebut the presumption thus raised. Thus, as men 
do not generally violate the penal code, the law presumes every 
man innocent ; but some men do transgress it, and therefore 
evidence is received to repel this presumption. This legal pre- 
sumption of innocence is to be regarded by the jury, in every 
case, as matter of evidence, to the benefit of which the party is 
entitled.^ And where a criminal charge is to be proved by cir- 
cumstantial evidence, the proof ought to be not only consistent 
with the prisoner's guilt, but inconsistent with any other rational 
conclusion.^ On the other hand, as men seldom do unlawful acts 
with innocent intentions, the law presumes every act, in itself 
unlawful, to have been criminally intended,^ until the contrary 
appears. Thus, on a charge of murder, malice is presumed from 
the fact of killing, unaccompanied with circumstances of extenua- 
tion ; and the burden of disproving the malice is thrown upon 
the accused.^ The same presumption arises in civil actions, 

1 [Prima facie evidence is such as is ^ Foster's Crown Law, 255; Rex v. 

sufficient to establish tlie fact, and, if Farrington, Russ. & Ry. 207. This point 

not rebutted, becomes so conclusive as was re-examined and discussed, with 

to require a verdict in accordance there- great ability and research, in York's 

with. Crane v. Morris, 6 Pet. (U. S.) case, 9 Mete. 93, in which a majority of 

698. " Stabit presumptio donee probetur the learned judges affirmed the rule as 

in contrarium." Com. v. Ilogan, 114 stated in the text. Wilde, J., however, 

Mass. 4; United States v. Wiggins, 14 strongly dissented; maintaining, with 

Pet. (U. S.) 334.1 great force of reason, that the rule was 

■•^ [State I". Pike, 49 N. H. 398..] founded in a state of society no longer 

3 Hodge's case, 2 Lewin, Cr. Cas. 227, existing; that it was inconsistent with 

p- Alderson, B. [See also ante, ^ 13 a, settled principles of criminal law; and 

iu\d j'ost, vol. iii. § 29.] that it was not supported by tlie weight 

* [Taylor (Ev. § 103) substitutes of authority. He was of opinion that 

"wrongfully" instead of "criminally" the following conclusions were main- 

with great propriety, as every unlawful tained on sound principles of law and 

act is by no means criminal. Where the manifest justice: 1. That when the facts 

act itself is of an indifferent nature, then and circumstances accompanying a hom- 

the intent must be proved. But where icide are given in evidence, the question 

it is in itself unlawful, the intent is pre- whether the crime is murder or man- 

eunied. Rex ly. Woodfall, 5 Burr. 2()G7, the slaughter is to be decided upon tlie evi- 

act bi'ing of such a nature as to show the deuce, and not upon any jiresumption 

intent. Rex v. Harvey, 2 B. & C. 257.] from the mere act of killing. 2. That, 



CHAP. TV.^ 



PRESUIMPTIVE EVIDENCE. 



41 



wliere the act complainecl of was unlawful.^ So, also, as menA 
generally own the personal property they possess, proof of pos- ■ 
session is presumptive proof of otvnership.^ But possession oi^ 



if there be any such presumption, it is 
a presumption of fact; and if tiie evi- 
dence leads to a reasonable doubt whether 
the presumption be well founded, tiiat 
doubt will avail in favor of the prisoner. 
3. That the burden of proof, in every 
criminal case, is on the government, to 
prove all the material allegations iia the 
indictment ; and if, on the whole evi- 
dence, the ju:\v have a reasonable doubt 
whether the defendant is guilty of the 
crime charged, they are bound to acquit 
him. (In Connnonwealth r. Hawkins, 3 
Gray, 465, Chief Justice Shaw said, that 
the doctrine of York's case is that, where 
the Idlling is proved to have been com- 
mitted by the defendant, and not/iing fur- 
ther is shown, the presumption of law is 
that it was malicious, and an act of mur- 
der; and that it was inapplicable to a 
case where the circumstances attending 
the homicide were fully shown by the 
evidence; that, in such a case, the homi- 
cide being conceded, and no excuse or 
justification being shown, it was either 
murder or manslaughter; and that the 
jury, upon all the circumstances, must 
be satisfied beyond a reasonable doubt 
that it was done with malice before they 
could find the defendant guilty of mur- 
der. This would appear to qualify ma- 
terially the rule in York's case as it has 
heretofore been understood. See also 
State V. McDonnell, 32 Vt, 491 ; ante, § 
18, and infra, §§ 81 b, 81 c. 

1 In Bromage v. Proser, 4 B. & C. 247, 
255, 256, which was an action for words 
spoken of the plaintiffs, in their business 
and trade of bankers, the law of implied 
or legal malice, as distinguished from 
malice in fact, was clearly expounded 
by Mr. Justice B.ayley, in the following 
terms : " Malice, in the common accep- 
tation, means ill-will against a person, 
but in its legal sense, it means a wrong- 
ful act, done intentionally without just 
cause or excuse. If I give a perfect 
stranger a blow likely to produce death, 
I do it of malice, because I do it inten- 
tionally and without just cause or ex- 
cuse. If I maim cattle, without knowing 
whose they are, if I poison a fishery, 
without knowing the owner, I do it of 
malice, because it is a wrongful act, and 
done intentionally. If I am arraigned 
of felony, and wilfully stand mute, I am 
said to do it of malice, because it is in- 
tentional, and without just cause or ex- 
cuse. Eussell on Crimes, 614, n. 1. And 
if I traduce a man, whether I know him 



or not, and whether I intend to do him 
an injurj- or not, I apprehend the law 
considers it as done of malice, because 
it is wrongful and intentional. It equally 
works an injury, whether I meant to jpro- 
duce an injur}' or not, and if I had no 
legal excuse for the slander, why is he 
not to have a remedy against me for the 
injury it produces 1 And I apprehend 
the law recognizes the distinction be- 
tween these two descriptions of malice, 
malice in fact and malice in law, in ac- 
tions of slander. In an ordinar}' action 
for words, it is sufficient to charge that 
the defendant spoke them falsely ; it is 
not necessary to state that they were 
spoken malicioush^ This is so laid down 
in Styles, 3ii2, and was adjudged upon 
error in Mercer v. Sparks, Owen, 51 ; 
Noy, 35. The objection there was, that 
the words were not charged to have been 
spoken maliciously, but the court an- 
swered that the words were themselves 
malicious and slanderous, and therefore 
the judgment was affirmed. But in ac- 
tions for such slander, as is prima facie 
excusable on account of the cause of 
speaking or writing it, as in the case of 
servants' characters, confidential advice, 
or communication to persons who ask it, 
or have a right to expect it, malice in 
fact must be proved by the plaintiff; and 
in Edmondson v. Stevenson, Bull. N. P. 
8, Lord JNlansfield takes the distinction 
between these and ordinary actions of 
slander." 

[In Commonwealth v. "Walden, 3 
Cush. 559, 561, which was an indictment 
under a statute for malicious mischief in 
wilfully and maliciousli/ injuring a cer- 
tain animal, by shooting, the court below 
ruled that "maliciously" meant "the 
wilfully doing of any act prohibited by 
law, and for which the defendant had no 
lawful excuse." The Supreme Court 
held the instructions erroneous, and de- 
cided that to make the act " maliciously " 
done, the jury must be satisfied that it 
was done either out of a spirit of wanton 
cruelty or wicked revenge. See 4 Bl. 
Comm. 244 ; Jacob's Law Die. by Tom- 
lin, tit. " Mischief, Malicious."] 

2 [Armory v. Delamirie, 1 Stra. 505; 
Magee v. Scott, 9 Cush. 150 ; Fish v. Skut, 
21 karb. 333; MUay v. Butts, 35 Maine, 
139; Linscott i'. Trask, lb. 150; Vining 
V. Baker, 63 Maine, 923. So as to real 
property. Metters v. Brown, 1 H. & C. 
686.1 



42 LAW OF EVIDENCE. [PART I. 

the fruits of crime recently after its commission, is prima facie 
evidence of guilty possession ; and, if unexplained either by direct 
evidence, or by the attending circumstances, or by the character 
and habits of life of the possessor, or otherwise, it is taken as 
conclusive. 1 This rule of presumption is not confined to the case 
of theft, but is applied to all cases of crime, even the highest and 
most penal. Thus, upon an indictment for arson, proof that 
property which was in the house at the time it was burnt, was 
soon afterwards found in the possession of the prisoner, was held 
to raise a probable presumption that he was present, and con- 
cerned in the offence.^ The like presumption is raised in the 
case of murder, accompanied by robbery ; ^ and in the case of the 
possession of an unusual quantity of counterfeit money.* 

§ 35. Innocence. Tliis presmnption of innocence is so strong, 
that even where the guilt can be established only by proving a 
negative, that negative must, in most cases, be proved by the 
party alleging the guilt ; though the general rule of law devolves 
the burden of proof on the party holding the affirmative. Thus, 
•where the plaintiff complained that the defendants, who had 
chartered his ship, had put on board an article highly inflam- 
mable and dangerous, without giving notice of its nature to the 
master, or others in charge of the sliip, whereby the vessel was 
burnt ; he was held bound to prove this negative averment.^ In 
some cases, the presumption of innocence has been deemed 

1 Rex V. , 2 C. & p. 859 ; Regina railway station to the easy access of the 

v. Coote, 1 Armst. Macartn. & Ogle, 337 ; public, but which were more easily ac- 

The State v. Adams, 1 Hayw. 463 ; Wills cessible to the servants of the railway 

on Circumstantial Evidence, 67. Where company, were stolen by the servants, 

the things stolen are such as do not pass McQueen v. Great West. R. R. Co., L. 

from hand to hand (e. 7. the ends of un- R. 10, Q B. 569.] 

finislic'd woollen clothes), their being 2 Rickman's case, 2 East, P. C. 1035. 

found in the prisoner's possession, two ^ WiHg on Circumst. Evid. 72. 

months after they were stolen, is suffi- * Rex v. Fuller et al., Russ. & Ry. 308. 
cient to call for an explanation from him 8 Williams v. E. Ind. Co., 3 East, 102 ; 

how lie came by them, and to be con- Bull. N. P. 298. So, of allegations tliat 

sidered by the jury. Rex v. Partridge, a party had not taken the sacrament, 

7C. &P. 551. "FurtumprtBSumitur com- Rex u. Hawkins, 10 East 211; had not 

missum ab illn, penes quern res furata in- complied with the act of uniformity, &c., 

venta fuorit, adeo ut si non docuerit a quo Powell v. Millburn, 3 Wills. 355, 360; 

rem habuerit, juste, ex ilia inventione, that goods were not legally imported, 

poterit subjici tormentis." Mascard. Sissons ?>. Di.xon, 5 B. & C. 758; that a 

De Probat. vol. ii., Concl. 834 ; Menoch. tlieatre was not duly licensed, Rod well 

De Prajsumpt. liv. 5, Pricsumpt. 31. [See v. Rcdge, 1 C. & P. 220. [On an indict- 

post, vol. iii, §§ 31, 32, 33. And see also ment for seduction, the government must 

State V. Ilodge, 50 N. H. 510; that it is a prove the previous chastity of the fe- 

question of fact for tlie jury, what kind male, as to presume the contrary is in- 

and how recent a possession gives rise to consistent with the presumption of the 

the presumi)tion of theft. But there is prisoner's innocence. West v. State, 1 

no presumption that goods exposed in a Wis. 209. [ 



CHAP. IV.] PEESUJIPTIVE EVIDENCE. 43 

sufficiently strong to overtlirow the presumption of life. Thus, 
where a woman, twelve months after her husband was last heard 
of, married a second husband, by whom she had children ; it was 
held, that the Sessions, in a question upon their settlement, 
rightly presumed that the first husband was dead at the time of 
the second marriage.^ 

§ 36. Innocence. An exception to this rule, respecting the pre- 
sumption of innocence, is admitted in the case of a libel. For 
where a libel is sold in a bookseller's shop, by his servant, in the 
ordinary course of his employment, this is evidence of a guilty 
publication by the master ; though, in general, an authority to 
commit a breach of the law is not to be presumed. This excep- 
tion is founded upon public policy, lest irresponsible persons 
should be put forward, and the principal and real offender should 
escape. Whether such evidence is conclusive against the master, 
or not, the books are not perfectly agreed ; but it seems conceded, 
that the want of privity in fact by the master is not sufficient to 
excuse him ; and that the presumption of his guilt is so strong 
as to fall but little short of conclusive evidence.^ Proof that the 
libel was sold in violation of express orders from the master would 
clearly take the case out of tliis exception, by showing that it 
was not sold in the ordinary course of the. servant's duty. The 
same law is applied to the publishers of newspapers.^ 

§ 37. Innocence. The presumption of innocence may be over- 
thrown, and a presumption of guilt be raised by the misconduct of 
the party, in suppressing or destroying evidence which he ought 

} Eex V. Twyning, 2 B. & Aid. 385. ing at the time of the second marriage. 

[Quin V. State, 46 Ind. 459. And where Eex v. Harborne, 2 Ad. & El. 540. [See 

the presumption of innocence conflicts also post, § 80.] 

with the presumption of the continuance ^ j^gx v. Gutch, 1 INI. & M. 433 ; Hard- 

of life, the latter must be proved. Lock- ing v. Greening, 8 Taunt. 42; Eex v. 

hart V. White, 18 Texas, 102 ; Sharp v. Almon, 5 Burr. 2686 ; Eex v. Walter, 3 

Johnson, 22 Ark. 75; Klein v. Landman, Esp. 21; 1 Euss. on Crimes, 341 (3d ed. 

29 Mo. 259. Legitimacy is to be presumed p. 251 ) ; Ph. & Am. on Evid. 466 ; 1 Phil, 

till the contrary is shown. Dinkins v. Evid. 446. [This is rather a presump- 

Samuel, 10 Eich. (S. C.) 06; Strode v. tion of authority conferred upon the 

McGowan, 2 Bush (Ky.), 621; Harrison agent to do the act, than an exception 

V. South, 21 P3ng. L. & Eq. 343 ; Ward v. to the rule of presumed innocence. 

Dulaney, 23 Miss. 410.] But in another Cooper v. Slade, 6 H. of L. 786 ; Eex v. 

case, where, in a question upon the de- Dixon, 3 M. & S. 11; Eex v. Medley, 6 

rivative settlement of the second wife, it C. & P. 292. As to presumptions from 

was proved that a letter had been writ- alterations of negotiable paper, see post, 

ten from the first wife from Van Die- § 564, n.] 

man's Land, bearing date only twenty- 3 \ Russ. on Crimes, 341 ; Eex v. Nutt, 

five days prior to the second marriage, Bull. N. P. 6 (3d ed. p. 251); Southwick 

it was held, that the Sessions did right v. Stevens, 10 Johns. 443. 
in presuming that the first wife was liv- 



44 



LAAV OF EVIDEXCE. 



[PAE,T I, 



to produce, or to which the other party is entitled. Thus, the 
spoliation of i)apers, material to show the neutral character of a 
vessel, furnishes a strong presumption, in odium spoUatoris, against 
the ship's neutrality .^ A similar presumption is raised against a 
party who has obtained possession of papers from a witness, after 
the service of subpoena duces tecum upon the latter for their pro- 
duction, which is withheld.^ The general rule is, omnia prce- 
sumuntia' contra spoliatorem.^ His conduct is attributed to his 
supposed knowledge that the truth would have operated against 
him. Thus, if some of a series of documents of title are sup- 
X)ressed by the party admitting them to be in his possession, tliis 
is evidence that the documents withheld afford inferences unfavor- 
able to the title of that party .^ Thus, also, where the finder of 
a lost jewel would not produce it, it was presumed against him 
that it was of the highest value of its kind.^ But if the defendant 
has been guilty of no fraud, or improper conduct, and the only 
evidence against him is of the delivery to him of the j)laintiff's 
goods, of unknown quality, the presumption is that they were 
goods of the cheapest quality.^ The fabrication of evidence, how- 



1 The Hunter, 1 Dods. 480 ; The Pi- 
zarro, 2 Wheat. 227 ; 1 Kent, Comni. 157 ; 
supra, § 31 [Blade v. Noland, 12 Wend. 
173. When a party voluntarily destroys 
written evidence, he must show that it 
was innocently done before he can be 
allowed to give secondary evidence of 
the contents of the writings destroyed. 
Joannes v. Bennett, 5 Allen (Mass.), 169; 
Tilton V. Beecher, Sup. Ct. (N. Y.), 1875; 
Bavley y. M'Mickie, 9 Cal.430; Tobin v. 
Shaw, 45 Maine, 331. Post, § 84, n.] 

2 Leeds i\ Cook, 4 Esp. 256 ; Rector v. 
Rector, 3 Gilm. 105. [So, if he withholds 
papers which would explain doubts, the 
doubts must be to his prejudice. At- 
torney-Gen. V. Windsor, 24 Beav. G7'J.] 
But a refusal to produce books and pa- 
pers under a notice, though it lays a 
foundation for the introduction of sec- 
ondary evidence of their contents, has 
been held to afford no evidence of the 
fact sought to be proved by them ; such, 
for example, as the existence of a deed 
of conveyance from one mercantile part- 
ner to another. Hanson v. Eustace, 2 
Howard, S. C. 053. [The omi.ssion of a 
party to call a witness, who might equally 
have been called by the other i)arty, is 
no ground for a presumption tiiat the 
testimony of the witness would have 
been unfavorable. Scovill v. Baldwin, 
27 Conn. 316.] 

8 2 Foth. Obi. (by Evans) 292 ; DalstoQ 



V. Coatsworth, 1 P. Wms. 731 ; Cowper 
V. Earl Cowper, 2 P. Wms. 720, 748-752 ; 
Rex V. Arundel, Hob. 109, explained in 
2 P. Wms. 748, 749 ; D. of Newcastle v. 
Ivinderly, 8 Ves. 363, 375 ; Annesley v. 
E. of Anglesea, 17 Howell's St. Tr. 1430. 
See also Sir Samuel Romilly's argument 
in Lord Melville's case, 29 "Howell's St. 
Tr. 1194, 1195; Anon., 1 Ld. Raym. 731; 
Broom's Legal Maxims, p. 485. In Bar- 
ker V. Ray, 2 Russ. 73, the Lord Chan- 
cellor thought that this rule had in some 
cases been pressed a little too far. See 
also Harwood v. Goodright, Cowp. 86. 
[See post, vol. iii. § 34.] 

* James v. Biou, 2 Sim. & Stu. 600. 
[So if the documents are presumably in 
his possession. See post, vol. iii. § 408 ; 
Attorney-General v. Windsor, 24 Beav. 
679. And if the charge be of fraud or 
misconduct, and the production of the 
papers would establish his guilt or in- 
nocence, the jury will be amph' ju.-^tified 
in inferring guilt, from tlie une.\i)lained 
fact of their non-jiroduction. Clifton i: 
United States, 4 How. (U. S.) 442. Tam- 
pering with witnesses gives rise also to 
adverse presumptions. Moriarty v. L. 
C. & D. R. R. Co., 6 L. R. Q. B. 314.J 

^ Armory v. Delannrie, 1 Stra. 505; 
[Sutton V. Davenport, 27 L. J. C. P. 54]. 

•^ Clunnes v. Pezzey, 1 Campb. 8; 
[Lawson v. Sweney, 8 Jur. 964]. 



CHAP. IV.] 



PRESUMPTIVE EVIDEiSrCE. 



45 



ever, does not of itself furnish any presumption of law against 
the innocence of the party, but is a matter to be dealt with by the 
jury. Innocent persons, under the influence of terror from the 
danger of their situation, have been sometimes led to the simula- 
tion of exculpatory facts ; of which several instances are stated in 
the books.^ Neither has the mere non-production of books, upon 
notice, any other legal effect, than to admit the other party to prove 
their contents by parol, unless under special circumstances.^ 



1 See 3 Inst. 104 ; Wills on Circumst. 
Evid. 113. [In Winchell v. Edwards, 57 
III. 41, the fabricition of evidence is held 
to give rise to the same presumption as 
its destruction. See also 1 Ph. Ev. (4th 
Am. ed.) Go9; Com. v. Webster, 5 Cash. 
(Mass.) 316 ; Gardner v. People, 6 Parker, 
155 ; and post, vol. iii. § 34. As to altera- 
tion of evidence, see post, § 565, and 
State V. Knapp, 45 N. H. 148.] 

2 Cooper I'. Gibbons, 3 Campb. 363. 
[Flight may be evidence of guilt and so 
may an attempt to escape from custody, 
or to bribe, concealment, disguise, and the 
like. Panning i;. State, 14 Mo. 386; People 
V. Pitcher, 15 Mich. 397; Porter v. State, 
2 Ind. 35; Dean v. Com, 4 Gratt. (Va.) 
541 ; Whaley v. State, 11 Geo. 127 ; State 
V. Staples, 47 N. H. 113; Campbell i-. 
State, 23 Ala. 44. And it would seem that 
the absence of these facts should afford 
some favorable inference at least in 
strengthening the presimiption of inno- 
cence, though it has been held that a 
prisoner cannot show that he refused to 
avail himself of an opportunity for flight. 
Com.r. Hersey (without discussion or au- 
thority), 2 Allen (Mass.), 173; People v. 
Rathbun, 21 Wend. (N. Y.), 133. Nor is 
evidence of flight, merely as such, admis- 
sible to prove guilt, People v. Stanley, 47 
Gal. 144; though the fact of pursuit may 
be shown, for the purpose of showing 
that the prisoner had an opportunity to 
throw away property alleged to have 
been stolen ; People v. Collins, 48 Cal. 277. 
But the rejection seems to be based on 
the theory that it is equivalent to a dec- 
laration by the prisoner in his own favor. 
Tliere is not, however, the same objec- 
tion to an act as to a declaration. In 
State V. Hays (23 Mo. 287), a prisoner 
was not allowed to explain his flight, it 
not appearing that the government used 
the fact against him, and the court re- 
fused a new trial, not on the ground of 
the correctness of the refusal, but because 
it was so clear, upon all the evidence, 
that the defendant was guilty, that this 
evidence, had it been admitted, could not 
have aided the prisoner. This law ap- 
pears bad upon both points. In State 



V. Williams, 54 Mo. 170, it is held that 
an attempt to escape raises the presump- 
tion of guilt. A change in the condition 
of things just prior to a view by the jury 
requires explanation. State v. Knapp, 45 
N. H. 148. Palsehood is evidence of guilt. 
State V. Reed, 62 Maine, 129. Where 
a pajty has the means of disproving ad- 
verse testimony if it is false, and fails to 
do it, the failure gives rise to the pre- 
sumption that the tcstimonv is true. 
Com. U.Webster, 5 Gush. (Mass.) 320; 
Parks V. Richardson, 4 B. Mon. (Ky.) 
276. So if secondary evidence be offered" 
when better can be had, it gives rise to 
the suspicion, that the better evidence, if 
produced, would be adverse. Shoenber- 
ger V. Hackman, 37 Pa. St. 87 ; Mordecal 
V. Beal, 8 Port. (Ala.) 529. In New York, 
(Kelley v. People, 55 N. Y. 635), it was' 
recently held that the failure to deny, 
while under arrest, a charge of crime ia 
evidence of guilt. But in Massachu- 
setts, the rule is the reverse. Com. v. 
Walker, 13 Allen, 570. And no adverse 
presumption arises from a refusal to allow 
counsel to disclose confidential commu- 
nications. AVentworth v. Lloyd, 10 H. of 
L. 589 ; Bolton v. Corp. of Liverpool, 1 
My. & K. 88. It is error to charge, in 
an ordinary criminal case, that a prima 
facie case being made out, not one free 
from all doubt, but one requiring ex- 
planations which might be made, then 
failure to explain ought to remove that 
doubt. Chaft'ee v. United States, 18 Wall. 
( U. S.) 516. But the fact of silence may 
be taken into consideration as evidence 
of guilt. State v. Cleaves, 59 Maine, 298. 
When facts are equivocal, the presump- 
tion is in favor of honesty and fair deal- 
ing. Greenwood v. Lowe, 7 La. Ann. 197. 
Truth is to be presumed ratiier than 
falsehood. Harlett v. Hewlett, 4 Edw. 
(N. Y.) 7. When an act may be legal or 
illegal the presumption is in favor of 
legality. Bumpus v. Fisher, 21 Tex. 661. 
A violation of law will not be presumed, 
Horan v. Weiler, 41 Pa. St. 470; what is ac- 
cording to usage will be presumed rather 
than the contrary. Jay i'. Carthage, 48 
Maine, 353. As between the wrong-doer 



46 



LAW OF EVIDEKCE. 



[PAET I. 



§ 38. Course of trade. Other presumptions of this class are 
founded upon the experience of human conduct in the course of 
trade ; men being usually vigilant in guarding their property, 
and prompt in asserting their rights, and orderly in conducting 
their affairs, and diligent in claiming and collecting their dues. 
Thus, where a bill of exchange, or an order for the payment of 
money or delivery of goods, is found in the hands of the drawee, 
or a promissory note is in the possession of the maker, a legal 
presimiption is raised that he has paid the money due upon it, and 
delivered the goods ordered.^ A bank-note will be presumed to 
have been signed before it was issued, though the signature be 
torn off.2 So, if a deed is found in the hands of the grantee, 
having on its face the evidence of its regular execution, it will be 
presumed to have been delivered by the grantor.^ So a receipt 
for the last year's or quarter's rent is 'prima facie evidence of the 
payment of all the rent previously accrued.* But the mere 



and sufferer, presumptions are in favor 
of the latter. Loomis v. Green, 7 Greenl. 
(Maine), 386; Costigan v. Mohawk, &c.,2 
Den. (N. Y.) 609 ; Tinn v. Wharf Co., 7 
Cal. 243. No inferences unfavorable to 
character is to be drawn from the fact 
that a prisoner does not produce evidence 
of good ciiaracter. State v. Uphara, 38 
Maine, 261 ; State u. O'ISfeal, 7 Ired. (N. 
C.) Law, 251.] . 

1 Gibbon v. Featherstonhaugh, 1 Stark. 
225; Egg V. Barnett, 3 Esp. 196; Gar- 
lock V. Gcortner, 7 Wend. 1U8 ; Alvord v. 
Baker, 9 Wend. 323 ; Weidner v. Schwei- 
gart, 9 Serg. & R. 385 ; Shepherd v. Cur- 
rie, 1 Stark. 454 ; Brembridge v. Os- 
borne, Id. 374. [Carroll v. Bowie, 7 Gill, 
(N. J. ) 34.] The production, by the plain- 
tiff, of an I O U, signed by the defendant, 
is prima facie evidence that it was given 
by him to the plaintiff. Curtis v. Rich- 
ards, 1 ]M. & G. 46. [Crocker v. Walsh, 
2 Ir. Law (n. s.), 552. But it is not 
evidence of money lent. Fessenmeyer 
V. Adcock, 16 M. & W. 449; nor even of 
an account stated if tlie defendant shows 
that it was not given in acknowledgment 
of a debt due, Lemere v. Elliot, 6 H. & 
N. 656.] And where there are two per- 
sons, father and son, of tlio same name, 
it is presumed that tiie father is intended, 
imtil tlie contrary appears. vSee Steb- 
bing V. Spicer, B M. G. & S. 827, wliere 
the cases to this point are collected. See 
also [Stevens v. West, 6 Jones (N. C), 
Law, 49] ; Tlie State v. Vittum, 9 N. H. 
519; Kincaid v. Howe, 10 Mass. 205. 
[Where the name of tlie grantee of laud 



and that of a prior holder and grantor 
are the same, it will be presumed they des- 
ignate the same person. Brown v. Meta, 
33 111. 339. So of two grants of land to the 
same name. Gates v. Loftus, 3 A. K. Mar. 
(Ky.) 202. But see Mooers v. Bunker, 
29 N. H. 420. And generally identity of 
name is presumptive of identity of per- 
son. Gitt V. Watson, 18 Mo. 274. But 
any difference in the names destroys the 
presumption. Bennett v. Lebhart, 27 Ind. 
489; McMinn v. Whelan, 27 Cal. 300; 
Elsworth V. Moore, 6 Iowa, 486 ; Bur- 
ford V. McCue, 53 Pa. St. 427. And tlie 
party benefited by a deed or judgment 
will be presumed to assent to the same. 
Clawson V. Eichbaum, 2 Grant's Cas. 130.1 

2 Murdock v. Union Bank of La., 2 
Rob. (La.) 112; Smith v. Smith, 15 
N. R. 55. 

3 -\vard V. Lewis, 4 Pick. 518. [There 
is a legal presumption, that the property 
in the goods is in the consignee named in 
the bill of lading, so that he may sue in 
his own name to recover damages for 
non-dclivcrj' thereof, &c. Lawrence ?'. 
Minturn, 17 How. (U. S.) 100. So, of an 
unsigned account in the handwriting of 
the maker, in the hands of the debtor. 
Nichols V. Aisop, 10 Conn. 263. The 
possession by a party of a receipt from 
a common carrier raises the ])resumption 
of a proper delivery, and of the posses- 
sor's assent to its terms. Booman v. Am 
Exp. Co., 21 Wis. 152.1 

* 1 Gilb. Evid. (by Lofft.) 300; Brew- 
er V. Knapp, 1 Pick. 337. [See also 
Ilodgdon V. Wight, 36 Maine, 326.] 



CHAP, rv.] 



PEESTIMPTIVE EVIDENCE. 



47 



delivery of money by one to another, or of a bank check, or the 
transfer of stock, unexplained, is presumptive evidence of the 
payment of an antecedent debt, and not of a loan.^ The same 
presumption arises upon the payment of an order or draft for 
money ; namely, that it was drawn upon funds of the drawer in 
the hands of the drawee. But in the case of an order for the 
delivery of goods it is otherwise, they being presumed to have 
been sold by the drawee to the drawer.^ Thus, also, where the 
j)roprietors of adjoining parcels of land agree upon a line of 
division, it is presumed to be a recognition of the true original 
line between their lots.^ 

§ 38 a. Execution of instruments. Regularity of acts. Of a 
similar character is the presumption in favor of the due execu- 
tion of solemn instruments. Thus, if the subscribing witnesses 
to a will are dead, or if, being present, they are forgetful of all 
the facts, or of any fact material to its due execution, the law 
will in such cases supply the defect of proof, by presuming that 
the requisites of the statute were duly observed.^ The same 
principle, in effect, seems to have been applied in the case of 
deeds.^ 



. 1 "Welch V. Seaborn, 1 Stark. 474 ; 
Patton V. Ash, 7 Serg. & R. 116, 125; 
Breton v. Cope, Peake's Cas. 30 ; Lloyd 
V. Sandiland, Gow, 13, 16; Gary v. 
Gerrish, 4 Esp. 9 ; Aubert i*. Wash, 4 
Taunt. 293; Boswell v. Smith, 6 C. & P. 
60. [Gerding v. Walter, 29 Mo. 426.] 
2 Alvord V. Baker, 9 Wend. 323, 324. 

* Sparhawk v. Bullard, 1 Met. 95. 

* Burgoyne v. Showier, 1 Roberts, 
Ecel. 10 ; hi re Leach, 12 Jur. 381. 

6 Burling v. Paterson, 9 C. & P. 570 ; 
Dewey v. Dewey, 1 Met. 349 ; Quimby v. 
Buzzell, 4 Shepl. 470; New Haven Co. 
Bank v. Mitchell, 15 Conn. 206; infra, 
§ 372, n. [In re Sandilands, 6 L. R."(C. 
P.) 411.] But there is no presumption in 
the case of a deed, that the witnesses, be- 
ing dead, would, if living, testify to the 
grantor's soundness of mind at the time 
of delivery. Flanders v. Davis, 19 N. H. 
139. But one will be presumed to un- 
derstand the contents of an instrument 
signed by him, and whether dated or not. 
Androscoggin Bank v. Kimball, 10 Gush. 
373. [So also he will be conclusively pre- 
sumed to have read a bill of lading de- 
livered to him by a carrier, there being 
no fraud. Grace v. Adams, 100 Mass. 505. 
But not to know the contents of a notice 
printed on the back of a railroad ticket. 



Malone v. B. & W. R. R. Co., 12 Gray, 

Mass. 388. On the maxim, " Omnia praesu- 
muntur recte esse acta," that will be pre- 
sumed to have been done which ought to 
have been done, as that a bill in Chan- 
cery was sworn to. Rex v. Benson, 2 
Camp. 508 ; that a notice printed, posted, 
and apparently signed by the comman- 
der of a military post, was by his order, 
Bruce v. Nicolopopulo, 11 Ex. 129 ; that 
a church, long used, was duly conse- 
crated, Rugg V. Kingsmill, 1 L. R. Ad. & 
Ec. 343 ; Reg. v. IMainwaring, 26 L. J. M. 
C. 10 ; that a parish certificate long recog- 
nized, was duly executed. Rex v. Upton 
Gray, 10 B. & C. 807 ; Reg. v. Stainforth, 
11 Q. B. 66; and generally when an 
official act has been done, which can 
only be lawful and valid, by the doing 
of certain preliminary acts, it will be 
presumed that those preliminary acts 
have also been done. Rex v. Whiston, 
4 A. & E. 607 ; Reg. v. Broadhempston, 
28 L. J. N. C. 18 ; Cosset v. Howard, 10 
Q. B. 411. So it will be presumed that 
the designation of a foreign official is 
true. Salter v. Apptegate, 3 Zabr. (N. 
J.) 115. But jurisdiction will not be 
presumed in favor of inferior courts ; or 
those established for special purposes, 
Eex V. All Saints, &c., 7 B. & C. 790; 



48 



LAW OF EVIDENCE. 



[PAET I. 



§ 39. Lapse of time. On the same general principle, where a 
debt due by specialty has been unclaimed, and without recog- 
nition, for tioenty years, in the absence of any explanatory evi- 
dence, it is presumed to have been paid.^ The jury may infer 
the fact of payment from the circumstances of the case, within 
that period ; but the presumption of law does not attach, till the 
twenty years are expired.^ This rule, with its limitation of 
twenty years, was first introduced into the courts of law by Sir 
Matthew Hale, and has since been generally recognized, both in 
the courts of law and of equity.^ It is applied not only to bonds 
for the payment of money, but to mortgages, judgments, warrants 
to confess judgments, decrees, statutes, recognizances, and other 
matters of record, when not affected by statutes ; but with respect 
to all other claims not under seal nor of record, and not otherwise 
limited, whether for the payment of money, or the performance 
of specific duties, the general analogies are followed, as to the 
application of the lapse of time, which prevail on kindred sub- 
jects."* But in all these cases, the presumption of payment may 



Reg. V. Totness, 11 Q. B. 80. So it will 
be presumed tliat lost instruments had 
all tlie requisites to make them valid, 
as that they were stamped, Hart v. 
Hart, 1 Hare, 1; Rex v. Long Buckby, 
7 East, 45. I3ut not if when last seen 
they were not stamped. Arbor v. Fiis- 
sell, 9 Jur. n. s. 753. But wlien it ap- 
pears that there was opportunity for im- 
position, undue influence, overreaching, 
an unconscionable advantage on the part 
of the party who seeks to establish the 
instrument, courts of equity at least will 
require more or less proof according to 
circumstances. Baker v. Bradley, 25 L. 
J. Ch. 7 ; Cooke v. Lamotte, 15 Beav. 
234; Grcsley v. Mouselev, 28 L. J. Ch. 
620; Lvon v. Home, 37 L.J. Ch. 604; 
Dimsdaie v. Dimsdale, 25 L J. Ch. 806; 
Baker v. Monk, 33 Beav. 410. Courts 
of equity will j)resume, especially as be- 
tween those sustaining fiduciary or con- 
fidential relations, voluntary gifts to be 
invalid, unkss satisfied upon proof, there 
was no imposition, undue influence, or 
other wrong. Nottage v. Prince, 2 Glff. 
246 ; 1 Story, Eq. Jur. §§ 308-324. Not, 
however, if tlie relation is unlawful, a.s 
where a mistress sets up a violation of 
confidence on the part of her paramour. 
Hargreave v. Everard, 6 Ir. Eq. n. 8. 
278.] 

1 [Post, § 41.] 

2 Oswald V. Leigh, 1 T. R. 270; Hilla- 



ry V. Wellar, 12 Ves. 264 ; Colsell v. Budd, 
1 Campb. 27; Boltz v. Ballraan, 1 Yates, 
584; Cottle v. Payne, 3 Day, 289. In 
some cases, tlie presumption of payment 
has been made by the court, after eigh- 
teen years. Rex v. Stephens, 1 Burr. 
434 ; Clark v. Hopkins, 7 Johns. 556 ; 
but tliese seem to be exceptions to the 
general rule. 

3 Mathews on Presumpt. Evid. 379; 
Haworth v. Bostock, 4 Y. & C. 1 ; Gren- 
fell V. Girdlestone, 2 Y. & C. 562. 

* This presumption of the common 
law is now made absolute in the case of 
debts due by specialtv, bv Stat. 3 & 4 
Wm. IV. c. 42, § 3. See also Stat. 3 & 4 
Wm. IV. c. 27, and 7 Wm. IV. & 1 Vic. 
c. 28. It is also adopted in Neiv York, 
by Rev. Stat, part 3, c. 4, tit. 2, art. 
5, and is repcllable only by written ac- 
knowledgment, made within twenty 
years, or proof of part paj-ment within 
that period. In Man/laiul, the lapse of 
twelve years is made a conclusive pre- 
sumption of payment, in all cases of 
bonds, judgments, recognizances, and 
other specialties, by Stat. 1715, c. 23, 
§6; 1 Dorscv's Laws of Marvl. p, 11; 
Carroll v. Waring, 3 Gill & Johns. 401. 
A like provision exists in Massnchnseltn, 
as to judgments and decrees, after the 
lapse of twenty rears. Rev. Stat. c. 
120, § 24. 



CHAP. IV.] PEESITMPTIYE EVIDENCE. 49 

be repelled by any evidence of the situation of the parties, or 
other circumstance tending to satisfy the jury that the debt is 
still due.^ 

§ 40. Course of business. Under this head of presumptions 
from the course of trade, may be ranked the presumptions fre- 
quently made from the regular course of business in a public office. 
Thus postmarks on letters are prima facie evidence, that the letters 
were in the post-office at the time and jDlace therein specified.^ 
If a letter is sent by the post, it is presumed, from the known 
course in that department of the public service, that it reached 
its destination at the regular time, and was received by the person 
to whom it was addressed, if living at the place, and usually 
receiving letters there. ^ So, where a letter was put into a box 
in an attorney's office, and the course of business was that a bell- 
man of the post-office invariably called to take the letters from 
the box ; this was held sufficient to presume that it reached its 
destination.'^ So, the time of clearance of a vessel, sailing under 
a license, was presumed to have been indorsed upon the license, 
which was lost, upon its being shown that, without such indorse- 
ment, the custom-house would not have permitted the goods to be 
entered.^ So, on proof that goods which cannot be exported 
without license were entered at the custom-house for exportation, 
it will be presumed that there was a license to export them.*^ 
The return of a sheriff, also, which is conclusively presumed to 

1 A more extended consideration of reached the hands of the officer on the 
this subject being foreign from tlie plan day of its date. Cliickering v. Failes, 20 
of tilts work, the reader is referred to the 111. 507.] 

treatise of Mr. Mathews on Presumptive ^ Saunderson v. Judge, 2 H. Bl. 500; 
Evidence, c. 19, 20; and to Best on Bussard v. Levering, 6 Wheat. 102; Lin- 
Presumptions, part 1, c. 2, 3. [Gran- denberger v. Bcal, lb. 104; Bayley on 
tham r. Canaan, 38 N. H. 268.] Bills (by Phillips & Sewall), 275, 276, 

2 Fletcher v. Braddyl, 3 Stark. 64 ; 277 ; Walter v. Haynes, Ry. & M. 149 ; 
Rex V.Johnson, 7 East, 65. [In criminal Warren v. Warren, 1 Or. M. & R. 2.50; 
cases at least, the post-mark must be Russell v. Beuckley, 4 R. I. 525. [See 
proved to be genuine.] Rex v. Watson, post, vol. ii. § 188, and note; Loud v. Mcr- 
1 Campb. 215; Rex r. Plumer, Russ. & rill, 45 Maine, 516; conlni, see Freeman 
Rv. 264; New Haven Co. Bank r. Mitch- v. Morey, lb. 50. So of a telegraphic 
ell, 15 Conn. 206. [The date a letter or despatch. Com. v. Jeffries, 7 Allen 
any document bears will be regarded, (Mass.), 548.] 

pruna facie, as its true date. Malpas i». * Skilbeck v. Garbett, 9 Jur. 339; 

Clements, 19 L. J. (Q. B.) 435 ; Anderson s. c. 7 Ad. & El. N. s. 84G. Spencer v. 

V. Weston, 6 Bing. N. C. -300; Potez i;. Thompson, 6 Jr. L. n. s. 537. [So where 

Glossop, 2 Ex. 191 ; unless there appear the letter was left with tiie servant of 

to be something in the circumstances to the person to whom it was addressed, 

show an interest in ante or post dating. McGregor v. Keily,o Ex. 704.] 
Sinclair v. Baggallev, 4 M. & W. 318; 5 Butler u. Allnut, 1 Stark. 222. 

Trelawney v. Coleman, 2 Stark. 193. <= Van Omeron v. Dowick, 2 Campb. 

And a writ has been presumed to have 44. 



50 



LAW OF EVIDENCE. 



[PAKT I. 



be true, between the parties to the process, is taken priina facie 
as true, even in his own favor ; and the burden of proving it 
false, in an action against him for a false return, is devolved on 
the plaintiff, notwithstanding it is a negative allegation.^ In 
fine, it is presumed, until the contrary is proved, that every man 
obeys the mandates of the law, and performs all his official and 
social duties.2 The like presumption is also drawn from the 
usual course of men's private offices and business, where the 
primary evidence of the fact is wanting,^ 

§ 41. Continuity. Other presumptions are founded on the experi- 
enced continuance or permanency, of longer and shorter duration, 
in human affairs. When, therefore, the existence of a person, a per- 
sonal relation, or a state of things, is once established by proof, the 
law presumes that the j)erson, relation, or state of things continues 
to exist as before, until the contrary is shown, or until a different 
presumption is raised, from the nature of the subject in question.* 



1 Clark V. Lyman, 10 Pick. 47; Boyn- 
ton V. Willard, Id. 169. 

2 Ld. Halifax's case, Bull. N. P. [298] ; 
Bank United States v. Dandridge, 12 
Wheat. 09, 70; Williams v. E. Lid. Co., 3 
East, 192; Hartwell v. Root, 19 Johns. 
345; The Mary Stewart, 2 W. Rob. Adm. 
244; [Lea v. Polk County Copper Co., 
21 liow. (U. S.) 493; Cooper v. Cranberry, 
33 Miss. 117; Curtis t-. Herrick, 14 Cal. 
117; Isl)ell V. N. Y. & N. Haven R. R. 
Co., 25 Conn. 556]. Hence, children born 
during the separation of husband and 
wife, by a decree of divorce a inensa et 
thoro, are, prima facie, illegitimate. St. 
George v. St. Margaret, 1 Salk. 123 
[Drake v. Mooney, 31 Vt. 617; Shelbv- 
viile V. Shelby ville, 1 Met. (Ky.) 54; 
Cobb I'. >.'ewcomb, 7 Clarke (Iowa), 43). 

8 Doe V. Turford, 3 B. & Ad. 890, 
895; Champnevs v. Peck, 1 Stark. 
404 ; Pritt v. Falrclongh, 3 Cainpb. 305 ; 
Dana v. Kemble, 19 Pick. 112. [So in 
the common cour.se of affairs the fact 
that a person has acted in any official 
capacity is prima fucie evidence that he 
has been duly clothed with authority so 
to act, since it is not to be presumed that 
any one would assume so to act witiiout 
auihorily. And tliis is so, wiiether the 
authority is conferred by writing or un- 
der seal, Dexter v. Hayes, II Ir. Law, 
N. s. lOG; or the action be brought in the 
name of the officer, McMalion v. Lennanl, 
G H. of L. (;as. 970; and the title be di- 
rectly put in pleading, Caswell v. Curtis, 
2 Hing. N. C. 22s> ; or though the proceed- 
ings be in a criminal case, as in the trial 



for the murder of a constable. Rex v, 
Gordon, 1 Leach, C. C. 515; or a post- 
office clerk for embezlement, Clay's case, 
2 East, P. C. 580 ; Rex v. Barrett, 6 C. & 
P. 124. The same rule applies to cor- 
porations. Their acts are presumed to 
be authorized by their charters. Bank 
of U. S. V. Dandridge, 12 Wheat. (U. S.) 
70. That public officers and persons in 
authority do their duty, and that their 
acts are lawful and proper, is to be pre- 
sumed in the absence of evidence to the 
contrary. Grey v. Washburn, 23 Cal. Ill ; 
Todernier v. Aspinwall, 43 111. 409 ; Ross 
i\ Reed, 1 Wheat. (U. S.) 482; Minter v. 
Crommclin, 18 How. (U. S.) 87; Nelson 
V. People, 23 N. Y. 293 ; and their acts, 
within the scope of their authority, are 
^presumed to be official, Balcombe v. 
Northup, Minn. 172; Salter v. Apple- 
gate, 3 Zabr. (N. J.) 115; and, in the ab- 
sence of evidence as to tlie scope of tlieir 
authority, their acts will be ])resunied 
to be within it, Jones v. Muisbach, 26 
Tex. 235.] 

* [Ownership of personal property is 
presumed to continue till a sale is shown. 
l\Iere change of possession does not suf- 
fice to control the iiresumiition, McGee 
V. Scott, 9 Cush. (Mass.) 148; so a cus 
torn to continue. Scales v. Key, 11 A. 
& E. 819; a pauper to retain his settle- 
ment, Rex V. Tanner, 1 Esp. 230 ; a per- 
son to retain liis residence, Kilburn v. 
Bcnnet, 3 Mete. (Mass.) 199; Prathcr v. 
Palmer, 4 Ark. 456; coverture to con- 
tinue, Erskine v. Davis, 25 111. 251 ; a 
judguient to remain in force, Murjihy v. 



CHAP. IV.] 



PEESTJMPTIVE EVIDENCE. 



51 



Thus, where the issue is upon the life or death of a person, once 
shown to have been living, the burden of proof lies upon the party 
who asserts the death.i B^t after the lapse of seven years, mth- 
out intelligence concerning the person, the presumption of life 
ceases, and the burden of proof is devolved on the other party .2 
This period was inserted, upon great deliberation, in the statute 
of bigamy ,3 and the statute concerning leases for lives,* and has 
since been adapted, from analogy in other cases.^ But where the 



Orr, 32 111. 498 ; a state of mind to con- 
tinue, Blackburn v. State, 23 Ohio St. 146. 
See also Farr v. Payne, 40 Vt. 615 ; Leport 
V. Todd, 32 N. J. L. 124 ; and post, §§ 42, 
47, n.] 

1 Throgmorton v. Walton, 2 Eoll. 
461 ; Wilson v. Hodges, 2 East, 313 ; Bat- 
tin V. Bigclow, 1 Pet. C. C. 452 ; Gille- 
land V. Martin, 3 McLean, 490. " Vivere 
etiam usque ad centum annos quilibet 
praesumitur, nisi probetur mortuus." 
Corpus Juris Glossatum, torn. ii. p. 718, 
n. (q) ; Mascard. De Prob. vol. i., Concl. 
103, n. 5. [Our law has not fixed the 
limit when the presumption will cease. 
Life to the common age of man may be 
presumed. Stevens v. McNamara, 36 
Maine, 176. And the extreme age of a 
hundred years will not warrant a con- 
clusive presumption of death, Burnly 
V. Ball, 24 Geo. 505 ; nor of infirm health 
and eighty years. ^Klatter of Hall, Wall. 
Jr. 83. On the other hand, where a 
term was for sixty years, the possibility 
of the termor being alive after the ex- 
piration of the term was considered by 
the court, Beverley v. Beverley, 2 Vern. 
131 ; Doe v. Andrews, 15 Q. B. 756 ; and 
a deposition taken sixty years before the 
trial was rejected, no search having been 
made for the deponent, and no reason 
shown why he was not produced, Ben- 
son V. Olive, 2 Str. 920.] 

'^ Hopewell v. I)e Pinna, 2 Campb. 
113; Loring v. Steinenian, 1 Mete. 204; 
Cofer V. Thermond, 1 Kelly, 538. This 
presumption of death, from seven years' 
absence, was questioned by the Vice- 
Chancellor of England, who said it was 
"daily becoming more and more unten- 
able;" in Watson v. England, 14 Sim. 
28 ; and again in Dowley v. Winfield, Id. 
277. But tlie correctness of his remark 
is doubted in 5 Law Mag. n. s. 338, 339 ; 
and the rule was subsequently adhered 
to by the Lord Chancellor in Cuthbert 
V. Purrier, 2 Phill. 199, in regard to the 
capital of a fund, the income of which 
was bequeathed to an absent legatee; 
though he seems to have somewhat re- 
laxed the rule in regard to the accumu- 



lated dividends. See 7 Law, 201. The 
presumption in such cases is, that the 
person is dead; but not that he died at 
the end of the seven years, nor at any 
otlier particular time. Doe it. Nepean, 
5 B. & Ad. 86 ; 2 M. & W. 894. [Death 
is presumed from the person not being 
heard from for seven years, and whoever 
has to make out the case of death at any 
particular time must prove it by affirma- 
tive evidence; and those who claim im . 
der a person who is said to have survived 
a particular period, must prove the fact. 
Lewes Trusts, L. 11. 11 Eq. 236 ; s. c. af 
firmed, L. R. 6 Ch. 3-56.] The time of the 
death is to be inferred by the jury from 
the circumstances. Rust i'. Baker, 8 
Sim. 443 ; Smith v. Knowlton, 11 N. H. 
191; Doe v. Flanagan, 1 Kelly, 543; 
Burr V. Sim. 4 Whart. 150 ; Bradley v. 
Bradley, Id. 173 [Whiteside's appeal, 23 
Penn. St. 114; Spencer v. Roper, 13 Ired. 
333; Primm v. Stewart, 7 Texas, 178. 
See also Creed, In re, 19 Eng. Law & Eq. 
119; Merritt v. Thompson, 1 Hilton, 5-50. 
Where a party who takes under a will 
has not been heard of for seven j^ears, 
the testator having died after three years 
had elapsed, and advertisement issued on 
the death of the testator failing to pro- 
duce any information, such legatee must 
be assumed to have survived the testator, 
and cannot be presumed to have died at 
any particular period during the seven 
years. Dunn v. Snowdon, 11 W. R. 160. 
A young sailor was last seen in the sum- 
mer of 1840, going to Portsmoutli to em- 
bark. His grandmother died in March, 
1841. It was presumed that he was the 
survivor. Tindall, In re, 30 Beav. 151]. 

3 1 Jac. L c. 11. 

* 19 Car. II. c. 6. 

5 Doe V. Jesson. 6 East, 85 ; Doe v. 
Deakin, 4 B. & Aid. 433 ; King v. Pad- 
dock, 18 Johns. 141. It is not necessary 
that the party be proved to be absent 
from the United States ; it is sufficient, 
if it appears that he has been absent for 
seven years, from the particular State of 
his residence, without having been heard 
from. Newman v. Jenkins, 10 Pick. 515 ; 



52 LAW OF EVIDENCE. [PAUT I. 

presumption of life conflicts with that of innocence, the latter is 
generally allowed to prevail.^ Upon an issue of the life or death 
of a party, as we have seen in the like case of the presumed pay- 
ment of a debt, the jury may find the fact of death from the lapse 
of a shorter period than seven years, if other circumstances 
concur ; as, if the party sailed on a voyage which should long 
since have been accomplished, and the vessel has not been heaivl 
from.2 But the presumption of the common law, independent of 
the finding of the jury, does not attach to the mere lapse of time, 
short of seven years,^ unless letters of administration have been 
granted on his estate within that period, which, in such case, are 
conclusive proof of his death.* 

§ 42. Partnership. On the same ground, a partnership, or other 
similar relation, once shown to exist, is presumed to continue, until 
it is proved to have been dissolved.^ And a seisin, once proved 
or admitted, is presumed to continue, until a disseisin is proved.® 
The opinions, also, of individuals, once entertained and expressed, 
and the state of mind, once proved to exist, are presumed to re- 
main unchanged, until the contrary appears. Thus, all the mem- 
bers of a Christian community being presumed to entertain the 
common faith, no man is supposed to disbelieve the existence and 
moral government of God, until it is shown from his own declara- 
tions. In like manner, every man is presumed to be of sane 
mind, until the contrary is shown ; but, if derangement or imbe- 
cility be proved or admitted at any particular period, it is pre- 

Innis V. Campbell, 1 Rawle, 373; Spurr See also Sillick v. Booth, 1 Y. & Col. N. 

V. Trimble, 1 A. K. Marsh. 278; Wain- C. 117. [Main, /» re, 1 Sw. & Tr. 11.] If 

bough V. Shenk, I Penningt. 1G7 ; Woods the person was unmarried when he went 

V. Woods, 2 Bay, 476; 1 N. Y. Rev. Stat, abroad and w\as last heard of, the pre- 

749, § 0. sumption of his death carries with it the 

^ Hex V. Twyning, 2 B. & Aid. 385; presumption that he died witliout issue. 

supra, § 35 [Spears v. Burton, 31 Miss. Ilowe v. Hasland, 1 W. Bl. 404; Doe v. 

547]. But there is no absolute presunip- GriflBn, 15 East, 203. 

tiou of law as to the continuance of life ; ^ Watson v. King, 1 Stark. 121; 

nor any absolute presumption against a Green v. Brown, 2 Stra. IIO'J; Park on 

person's doing an act because the doing Ins. 433. 

of it would be an offence against the * Newman v. Jenkins, 10 Pick. 515. 

law. In every case the circumstances The production of a will, with proof of 

must be considered. Lapsley v. Grier- payment of a legacy under it, and of an 

son, 1 H. L. Cas. 408. entry in the register of burials, were 

- In the case of a missing ship, bound held sufficient evidence of the party's 

from Manilla to London, on wliicii tlie death. Doe v. Penfold, 8 C. & P. 530 

untlerwriters had voluntarily paid the [Tisdale y. Conn. Ins. Co., 20 Iowa, 170.1 

amount insured, the deatii of those on ^ Alderson v. Clay, 1 Stark. 405; 2 

board was presumed by the Prerogative Stark. Evid. 500, G88 [Eames v. Eames, 

Court, after an absence of only two 41 N. H. 177 ; Clark r.Ale.xander, 8 Scott, 

years, and administration was granted N. R. 161]. 

accordingly. In re ilutton, 1 Curt. 505. * Brown v. King, 5 Mete. 173. 



CHAP. IV.] PRESUIMPTIVE EVIDENCE. 53 

sumed to continue, until disproved, unless the derangement was 
accidental, being caused by the violence of a disease.^ 

§ 43. A spii'it of comity and a clisposition to friendly intercourse 
are also presumed to exist among nations, as well as among indi- 
viduals. And, in the absence of any positive rule, affirmmg, or 
den^'ing, or restraining the operation of foreign laws, courts of 
justice presume the adoption of them by their own government, 
unless they are repugnant to its policy, or prejudicial to its inter- 
est.^ The instances here given, it is believed, will sufficiently 
illustrate this head of presumptive evidence. Numerous other 
examples and cases may be found in the treatises already cited, 
to which the reader is referred.^ 

§ 44. Presumptions of Fact, usually treated as composing 
the second general head of presumptive evidence, can hardly be 
said, with propriety, to belong to this branch of the law. They 
are, in truths but mere arguments, of which the major premise is 
not a rule of law ; they belong equally to any and every subject- 
matter ; and are to be judged by the common and received tests 
of the truth of propositions and the validity of arguments. They 
depend upon their own natural force and efficacy in generating 
belief or conviction in the mind, as derived from those connec- 
tions, which are shown by experience, irrespective of any legal 
relations. They differ from presumptions of law in this essential 
respect, that while those are reduced to fixed rules, and constitute 
a branch of the particular system of jurisprudence to which they 
belong, these merely natural presumptions are derived wholly and 
directly from the circumstances of the particular case, by means 



1 Attorney-General v. Pamther, 3 Bro. (Mass. ), 308 ; Cox v. Morrow, 14 Ark. 603 ; 
Ch. Cas. 443 ; Peaslee v. Robbins, 3 Mete. Holmes v. Broughton, 10 Wend. (N. Y.) 
164 ; Hix v. Whittemore, 4 Mete. 545 75 ; Bundy v. Hart, 46 Mo. 463 ; Reese i'. 
[Perkins v. Perkins, 39 N. H. 163; Titlow Harris, 27 Ala. 301 ; Crake v. Crake, 18 
I'. Titlow, o4 Pa. St. 216 ; Ripley v. Bab- Ind. 156 ; Hill r. Grigsby, 32 Cal. 55 ; 
cock, 13 Wis. 425; Walcot r. Alleyn, Walsh v. Dart, 12 Wis. 636; Bramliall 
Miln. Ec. Ir. 69; White v. Wilson, 13 v. Van Campen, 8 Minn. 13; Green v. 
Ves. 87]; 1 Collinson on Lunacy, 55; Rugely, 23 Texas, 539 ; Lucas v. Ladew, 
Shelford on Lunatics, 275 ; 1 Hal. P. C. 28 Mo. 342. But there is no such pre- 
30; Swinb. on Wills, Part IL § iii. 6, 7. sumption as to statute law; nor will it 
[See post, vol. ii. § 369-374, tit. " In- be allowed to work a forfeiture by ren- 
eanity," and §§ 689, 690.] dering a contract void. Cutter v. Wright, 

2 Bank of Augusta v. Earle, 13 Peters, 22 N. Y. 472 ; Smith v. Whittaker, 2-3^111. 
519 ; Story on Confl. of Laws, §§ 36, 37. 367.] 

[In the absence of proof to the contrary, 8 ggg Mathews on Presumptive Evid. 

the common law of another State, both c. 11-22 ; Best on Presumptions, jiassim 

civil and criminal, will be presumed to be [and the several titles in 2d and 3d vols, 

the same as that of the tribunal of trial, post], 
Cluff V. Mut. Benefit Life Ins. Co.. 13 Allen 



54 LAW OF EVIDENCE. [PAET I. 

of the common experience of mankind, without the aid or control 
of any rules of law whatever. Such, for example, is the infer- 
ence of guilt, drawn fi'om the discovery of a broken knife in the 
pocket of the prisoner, the other part of the blade being found 
sticking in the window of a house, which, by means of such an 
instrument, had been burglariously entered. These presumptions 
remain the same in their nature and operation, under whatever 
code the legal effect or quality of the facts, when found, is to be 
decided.! 

§ 45. Accomplices. Admissions. There are, however, some few 
general propositions in regard to matters of fact, and the weight of 
testimony by the jury, which are universally taken for granted in 
the administration of justice, and sanctioned by the usage of the 
bench, and which, therefore, may with propriety be mentioned un- 
der this head. Such, for instance, is the caution, generally given 
to juries, to place little reliance on the testimony of an accomplice, 
unless it is confirmed, in some material point, by other evidence. 
There is no presumption of the common law against the testimony 
of an accomplice; yet experience has shown, that persons capable 
of being accomplices in crime are but little worthy of credit ; and 
on this experience the usage is founded.^ A similar caution is to 
be used in regard to mere verbal admissions of a party ; this kind 
of evidence being subject to much imperfection and mistake.^ 
Thus, also, though lapse of time does not, of itself, furnish a con- 
clusive legal bar to the title of the sovereign, agreeably to the 
maxim, " nullum tempus occurrit regi ; " yet, if the adverse claim 
could have had a legal commencement, juries are instructed or 
advised to presume such commencement, after many years of 
uninterrupted adverse possession or enjoyment. Accordingly, 
royal grants have been thus found by the jury, after an indefi- 
nitely long-continued peaceable enjoyment, accompanied by the 
usual acts of ownership.* So, after less than forty years' posses- 

1 See 2 Stark. Evid. 684 ; 6 Law Mag. Rex v. Simmons, 6 C. & P. 540 ; Williams 
370. This subject has been very sue- v. Williams, 1 Hapg. Consist. 304. See in- 
cessfully illustrated by Mr. Wills, in his fra, under the head of Admissions, § 200. 
" Essay on the Rationale of Circumstan- * Rex v. Brown, cited Cowp. 110; 
tial Evidence," passim. [The facts from Mayor of Kingston v. Horner, Cowp. 102 ; 
which a presumption or inference is to Eldridge v. Knott, Cowp. 215; Mather v. 
be drawn must be proved by direct evi- Trinity Church, 3 S. & R. 509; Roe v, 
dence, and not be presumed or inferred. Ireland, 11 East, 280 ; Read i*. Brookman, 
Douglass y. Mitchell, 35 Penn. 440.] 8 T, R. 159; Goodtitle v. Baldwin, 11 

2 See infra, §§ 380, 381. East, 488; 2 Stark. Evid. 672, 
» Earle v. Picken, 5 C. & P. 542, n.; 



CHAP. IV.] PEESUJMPTIVE EVIDENCE. 55 

sion of a tract of land, and proof of a prior order of council for 
the survey of the lot, and of an actual survey thereof accordingly, 
it was held, that the jury were properly instructed to presume 
that a patent had been duly issued.^ In regard, however, to 
crown or public grants, a longer lapse of time has generally been 
deemed necessary, in order to justify this presumption, than is 
considered sufficient to authorize the like presumption in the case 
of grants from private persons. 

§ 46. Conveyances. Juries are also often instructed or advised, 
in more or less forcible terms, to presume conveyances between pri- 
vate individuals, in favor of the party who has proved a right to the 
beneficial enjoyment of the property, and whose possession is con- 
sistent with the existence of such conveyance, as is to be presumed ; 
especially if the possession, without such conveyance, would have 
been unlawful, or cannot be satisfactorily explained.^ This is 
done in order to prevent an apparently just title fi'om being de- 
feated by matter of mere form. Thus, Lord Mansfield declared 
that he and some of the other judges had resolved never to suffer 
a plaintiff in ejectment to be nonsuited by a term, outstanding in 
his own trustees, nor a satisfied term to be set up by a mortgagor 
against a mortgagee ; but that they would direct the jury to pre- 
sume it surrendered.^ Lord Kenyon also said, that in all cases 
where trustees ought to convey to the beneficial owner, he would 
leave it to the jury to presume, where such presumption could 
reasonably be made, that they had conveyed accordingly.* After 

1 Jackson v. McCall, 10 Johns. 377. wanting some collateral matter, neces- 
" Si probet possessionem excedentem me- sary to make it complete in point of 
moriam hominum, habet vim tituli et form. In such case, where the posses- 
privilegii, etiam a Principe. Et haec est sion is shown to have been consistent 
differentia inter possessionem xxx. vel. witli the fact directed to be presumed, 
xl. annorum, et non raemorabilis tem- and in such cases only, has it ever been 
poris ; quia per illam acquiritur non di- allowed." And he cites as examples, 
rectum, sed utile dominium; per istam Lade v. Holford, Bull. N. P. 110; Eng- 
autem directum." Mascard. De Probat. land v. Slade, 4 T. K. 682 ; Doe v. Sy- 
vol. i. p. 2.39, Concl. 199, n. 11, 12. [So bourn, 7 T. R. 2; Doe v. Hilder, 2 B. & 
e series of acts of ownership of a portion Aid. 782 ; Doe v. Wrighte, Id. 710. See 
of the sea-shore may authorize a jury to Best on Presumptions, pp. 144-169. 

find a grant from the crown. Calmady ^ Lade v. Holford, Bull. N. P. 110. 

V. Rowe, 6 C. B. 861. So also Beaufort < Doe v. Sybourn, 7 T. R. 2; Doe v. 

V. Swan, 3 Ex. 413; Healy v. Thome, 1 Staples, 2 T. R.696. The subject of the 

L R. C. L. 495.] presumed surrender of terms is treated 

2 The rule on this subject was stated at large in Mathews on Presumpt. Evid. 
by Tindal, C J., in Doe v. Cooke, 6 Bing. c. 13, p. 226-250, and is ably expounded 
174, 179. " No case can be put," says he, by Sir Edw. Sugden, in his Treatise on 
"in which any presumption has been Vendors and Purchasers c. 15, § 3, vol. 
made, except where a title has been iii. pp. 24-67, 10th ed. See also Best 
shown, by the party who calls for the on Presumptions, § 113-122. 
presumption, good in substance, but 



66 



LAW OF EVIDENCE. 



[part I. 



the lapse of seventy years, the jury have been instructed to pre- 
sume a grant of a share m a proprietary of lands, from acts done 
by the supposed grantee in that capacity, as one of the proprie- 
tors.^ The same presumption has been advised in regard to the 
reconveyance of mortgages, conveyances from old to new trustees, 
mesne assignments of leases, and any other species of document- 
ary evidence, and acts in j^ais^ which is necessary for the support 
of a title in all other respects evidently just.^ It is sufficient that 
the party, who asks for the aid of this presumption, has proved a 
title to the beneficial ownership, and a long possession not incon- 
sistent therewith ; and has made it not unreasonable to believe 
that the deed of conveyance, or other act essential to the title, 
was duly executed. Where these merits are wanting, the jury 
are not advised to make the presumption.^ 

§ 47. Personalty. The same principle is applied to matters be- 
longing to the jjersonalty. Thus, where one town, after being set off 
from another, had continued for fifty years to contribute annually 
to the expense of maintaining a bridge in the parent town, this was 



1 Farrar v. Merrill, 1 Greenl. 17. A 
by-law may, in like manner, be presumed. 
Bull. N. P. 211. The case of Corpora- 
tions, 4 Co. 78; Cowp. 110. 

2 Emery v. Grocock, 6 Madd. 54 ; 
Cooke V. Soltan,2 Sim. & Stu. 154; Wil- 
son V. Allen, 1 Jac. & W. Oil, 620; Roe 
V. Reade, 8 T. R. 118, 122 ; White v. Fol- 
jambe, 11 Ves. 350; Keene v. Deardon, 
8 East, 248, 266 ; Tenny v. Jones, 3 M. & 
Scott, 472; Rowe v. Lowe, 1 H. Bl. 446, 
459; Van Dyck v. Van Buren, 1 Caines, 
84; Jackson v. Murray, 7 Johns. 5; 4 
Kent, Comm. 90, 91 ; Gray v. Gardiner, 3 
Mass. 399; Knox v. Jenks, 7 Mass. 488; 
Society, &c. v. Young, 2 N. H. 310; Col- 
man V. Anderson, 10 Mass 105 ; Pejop- 
Bcot Proprietors v. Ranson, 14 Mass. 145; 
Bergen v. Bennet, 1 Caines, 1 ; Blos- 
som I'. Cannon, 14 Mass. 177; Battles v. 
Holley, 6 Greenl. 145; Lady Dartmouth 
V. Roi)erts, 16 East, 334, 339; Livingston 
r. Livingston, 4 Johns. Ch. 287. Whether 
deeds of conveyance can be presumed, in 
cases where the law has made provision 
for their registration, has been doubted. 
Tlie point was argued, but not decided, in 
Doe V. Hirst, 11 Price, 475. And see 24 
Pick. 322. The better opinion seems to 
be thatthougli the court will not, in such 
case, presume the existence of a deed as 
a mere inference of law, yet the fact is 
open for the jury to find, as in otiier 
cases. See Rex v. Long Buckby, 7 East, 



45; Trials per Pais, 237; Finch, 400; 
Valentine v. Piper, 22 Pick. 85, 93, 94. 

3 Dee V. Cooke, 6 Bing. 173, per Tin- 
dal, C. J. ; Doe v. Reed, 5 B. & A. 232 ; 
Livett V. Wilson, 3 Bing. 115; Schauber 
V. Jackson, 2 Wend. 14, 37 ; Hepburn v. 
Auld, 5 Cranch, 262 ; Valentine v. Piper, 
22 Pick. 85. This rule has been applied 
to possessions of divers lengtlis of dura 
tion ; as, fifty-two years, Ryder v. Hatha- 
way, 21 Pick. 298; fifty years, Melvin v. 
Prop'rs of Locks, &c., 16 Pick. 137 ; 17 
Pick. 255, s.c. ; tliirty-three years, White 
V. Loring, 24 Pick. 319 ; thirty years, Mc- 
Nair v. Hunt, 5 Miss. 300; twent\'-six 
years, Newman v. Studley, Id. 291 ; twen- 
ty years, Brattle-Square Church v. Bul- 
lard, 2 ]\Iet. 363 ; but the latter period is 
held sufficient. The rule, however, does 
not seem to depend so much upon the 
mere lapse of a definite period of time as 
upon all the circumstances, taken togeth- 
er ; the question being exclusivel}' for the 
jury. [See also Attorney-General v. Pro- 
prietors of Meeting-liouse, &c., 3 Gray, 1, 
G2-65. These presumptions for the qui- 
eting of title are not necessarily re- 
stricted to what may fairly be supposed 
to have in fact occurred ; but, ratiier, what 
may have occurred, and seems requisite 
to quiet the title in the possessor. St. 
Mary's College v, Attorney-General, 3 
Jur. N. 8. 675.1 



CHAP. IV.] 



PEESCTMPTIVE EVIDENCE. 



57 



held sufficient to justify the presumption of an agreement to that 
effect.! And, in general, it may be said that long acquiescence 
in any adverse claim of right is good ground, on which a jury 
may presimie that the claim had a legal commencement ; since it 
is contrary to general experience for one man long to continue to 
pay money to another, or to perform any onerous duty, or to sub- 
mit to any inconvenient claim, unless in pursuance of some con- 
tract, or other legal obligation. 

§ 48. Scope of this class of presumptions. In fine, this class of 
presumptions embraces all the connections and relations between 
the facts proved and the hypothesis stated and defended, whether 
they are mechanical and physical, or of a purely moral nature. 
It is that which prevails in the ordinary affairs of life, namely, 
the process of ascertaining one fact from the existence of another, 
without the aid of any rule of law ; and, therefore, it falls within 
the exclusive province of the jury, who are bound to find accord- 
ing to the truth, even in cases where the parties and the court 
would be precluded by an estoppel, if the matter were so pleaded. 
They are usually aided in their labors by the advice and instruc- 
tions of the judge, more or less strongly urged, at his discretion ; 
but the whole matter is free before them, unembarrassed by 
any considerations of policy or convenience, and unlimited by 
any boundaries but those of truth, to be decided by themselves, 
according to the convictions of their own understanding.^ 



1 Cambridge v. Lexington, 17 Pick. 
222. See also Grote v. Grote, 10 Johns. 
402 ; Schauber v. Jackson, 2 "Wend. 36, 
37. 

2 [The working accuracy of scientific 
instruments, clocks, thermometers, gas- 
meters, and the like, will also be presumed 
in the absence of evidence to tlie con- 
trary. Taylor, Ev., § 148, A. Where a 
number of cows belonging to different 
individuals break into an enclosure, each 
will be presumed to have done equal 
damage in the absence of evidence to 
the contrary. Partenheimer i;. Van Order, 



20 Barb. (N. Y.) 497. But where damage 
may be the result of either one of two 
different causes, there is no presumption 
against either. Priest v. Nichols, 116 
Mass. 401. And where a parcel of goods, 
after having passed through the hands 
of various carriers, is found to have 
been opened and a part of the goods 
stolen, the jury may presume, in the ab- 
sence of evidence to the contrary, that 
the loss was through the fault of the last 
carrier. Laughlin v. Ch. & N. W. R. R, 
Co., 28 Wis. 204 ; Smith v. N. Y. C. R. R. 
Co., 43 Barb. (N. Y.) 225.1 



PART 11. 

OF THE EULES WHICH GOVERN THE PRODUC- 
TION OF TESTIMONY. 



PAET II. 

OF THE RULES WHICH GOVERN THE PRODUCTION 
OF TESTBIOXY. 



CHAPTER I. 



OP THE RELEVANCY OF EVIDENCE. 



§ 49. Functions of judge and jury. In trials of fact, without 
tli6 aid of a jury, the question of the admissibility of evidence, 
strictly speaking, can seldom be raised; since, whatever be the 
ground of objection, the evidence objected to must, of necessity, 
be read or heard by the judge, in order to determine its character 
and value. In such cases, the only question, in effect, is upon 
the sufficiency and weight of the evidence. But in trials by jury, 
it is the province of the presiding judge to determine all ques- 
tions on the admissibility of evidence to the jury ; as well as to 
instruct them in the rules of law, by which it is to be weighed. 
Whether there be any evidence or not is a question for the judge ; 
/ whether it is sufficient evidence is a question for the jury.^ If 



1 Per BuUer, J., in Carpenter v. Hay- 
ward, Doug. 374. And see Best's Prin- 
ciples of Evidence, §§ 76-86. [And 
Chandler v. Von Roeder, 24 How. U. S. 
224. Relevancy to the issue is the test 
of admissibility. With the weight of 
evidence the judge cannot concern him- 
self, except in certain cases, where the 
testimonj' comes from tainted sources, as 
in the case of accomplices and false wit- 
nesses, Mhere he may caution against, 
but cannot exclude. Underwood v. Mc- 
Veigh, 23 Gratt. (Va.) 409; Paulette v. 
Brown, 40 Mo. 52; Callahan v. Shaw, 24 
Iowa, 441 ; ^lead v. McGraw, 19 Ohio, 
55 ; Blanchard v. Pratt, 37 111. 243. And 
see also post, § 380. In United States v. 
Anthony, U. S. Dist. Ct. North N. Y., 
Mr. Justice Hunt directed the jury, upon 
the evidence, to return a verdict of guilty, 
every fact in the case being undisputed, 
— a direction the propriety of which is 
by no means conceded. See Alb. L. J. 10, 



33, 78 ; Green's Cr. Law R., vol. ii. p. 226, 
n.] The notion that the jury have the 
right, in any case, to determine questions 
of law, was strongly denied, and their 
province defined, by Story, J., in the 
United States v. Battiste, 2 Sumn. 243. 
" Before I proceed," said he, to the mer- 
its of this case, I wish to say a few words 
upon a point, suggested by the argument 
of the learned counsel for the prisoner, 
upon which I have had a decided opinion 
during my whole professional life. It 
is, that in criminal cases, and especially 
in capital cases, the jury are the judges 
of the law as well as of the fact. My 
opinion is, that the jury are no more 
judges of the law in a capital or other 
criminal case, upon a plea of not guilty, 
than they are in every civil case tried 
upon the general issue. In each of these 
cases, their verdict, when general, is 
necessarily compounded of law and of 
fact, and includes both. In each they 



62 



LAW OF EVIDENCE. 



[PAET n. 



the decision of the question of admissibility depends on the deci- 
sion of other questions of fact, such as the fact of interest, for 



must necessarily determine the law, as 
well as the fact. In eacli they have the 
physical power to disregard the law, as 
laid down to them by the court. But I 
deny that, in any case, civil or criminal, 
they have the moral right to decide the 
law according to their own notions or 
pleasure. On the contrary, I liold it the 
most sacred constitutional right of every 
party accused of a crime, that the jury 
should respond as to the facts, and the 
court as to the law. It is the duty of 
the court to instruct the jury as to the 
law ; and it is the duty of the jury to 
follow the law, as it is laid down by the 
court. This is the right of every citizen ; 
and it is his only protection. If the jury 
were at liberty to settle tlie law for 
themselves, the effect would be, not only 
that the law itself would be most uncer- 
tain, from the different views which dif- 
ferent juries might take of it; but, in 
case of error, there would be no remedy 
or redress by the injured party; for the 
court would not have any right to review 
the law, as it had been settled by the 
jury. Indeed, it woidd be almost im- 
practicable to ascertain what the law, as 
settled by the jury, actually was. On 
the contrary, if the court should err, in 
laying down the law to the jury, there 
is an adequate remedy for the injured 
party, by a motion for a new trial, or a 
writ of error, as the nature of the juris- 
diction of the particular court may re- 
quire. Every person accused as a crim- 
inal has a right to be tried according to 
the law of the land, the fixed law of the 
l.-ind, and not by the law as a jury may 
understand it, or choose, from wanton- 
ness or ignorance, or accidental mistake, 
to interpret it. If I thought that the 
jury were the proper judges of the law 
in criminal cases, I should hold it my 
duty to abstain from the responsibility 
of stating the law to them upon any such 
trial. But believing, as I do, that ever}-- 
citizen lias a riglit to be tried by the law, 
and according to the law ; that it is his 
privilege and truest shield against op- 
pression and wrong, — I feel it my duty 
to state my views fully and openly on the 
present occasion." The same opinion as 
to the province of the jury was strongly 
expressed by Lord C. J. Best, in Levi v. 
Mylne, 4 Bing. 105. 

The same subject was more fully con- 
sidered in Tiic Commonwealth v. Porter, 
10 Met. 2(j.'5, wliicli was an indictment 
for selling into.xicating liquors without 



license. At the trial the defendant's 
counsel, being about to argue the ques- 
tions of law to the jury, was stopped by 
the judge, who ruled, and so instructed the 
jury, that it was their duty to receive 
the law from tlie court, and implicitl}' to 
follow its direction upon matters of law. 
Exceptions being taken to tliis ruling of 
the judge, the point was elaborately ar- 
gued in bank, and fully considered by 
the court, whose judgment, delivered by 
Shaw, C. J., concluded as follows : " On 
the whole subject, the views of the court 
may be summarily expressed in the fol- 
lowing propositions : That, in all criminal 
cases, it is competent for tlie jury, if 
they see fit, to decide upon all questions 
of fact embraced in the issue, and to re- 
fer the law arising thereon to the court, 
in the form of a special verdict. But it 
is optional with the jury thus to return 
a special verdict or not, and it is within 
their legitimate province and power to 
return a general verdict, if they see fit. 
In thus rendering a general verdict, the 
jury must necessarily pass ugon the' 
whole issue, compounded of the law and 
of the fact, and i\\cy may thus incident- 
ally pass on questions of law. In form- 
ing and returning such general verdict, 
it is within the legitimate authority and 
power of the jury to decide definitively 
upon all questions of fact involved in 
the issue, according to their judgment, 
upon the force and effect of the compe- 
tent evidence laid before them ; and if, 
in the progress of the trial, or in the 
summing-up and charge to the jury, the 
court should express or intimate any 
opinion upon any such question of fact, 
it is within the legitimate province of 
the jury to revise, reconsider, and de- 
cide contrary to such opinion, if, in their 
judgment, it is not correct, and warranted 
by the evidence. But it is the duty of 
tlie court to instruct the jury on all ques- 
tions of law which appear to arise in tiie 
cause, and also upon all questions per- 
tinent to the issue, upon whicli either 
party may request the direction of tiie 
court upon matters of law. And it is 
the duty of the jury to receive the law 
from the court, and conform their judg- 
ment and decision to such instructions, 
as far as they understand tliem, in ap- 
plying the law to the facts to be found 
by them; and it is not within the legiti- 
mate province of the jury to revise, re- 
consider, or decide contrary to such 
opinion or direction of the court in mat- 



CHAP. I.] 



THE EELEVA2TCY OF EVIDENCE. 



example, or of the execution of a deed, these preliminary ques- 
tions of fact are, in the first instance, to be tried by the judge ; 



ter of law. To this duty jurors are 
bound by a strong social <ind moral 
obligation, enforced by the sanction of 
an oath, to the same extent and in the 
same manner as they are conscientiously 
bound to decide all questions of fact ac- 
cording to the evidence. It is no valid 
objection to this view of the duties of 
jurors, that they are not amenable to 
any legal prosecution for a wrong de- 
cision in any matter of law ; it may arise 
from an honest mistake of judgment, in 
their apprehension of the rules and prin- 
ciples of law, as laid down by the court, 
especially in perplexed and complicated 
cases, or from a mistake of judgment in 
applying them honestly to the facts 
proved. The same reason applies to the 
decisions of juries upon questions of fact 
clearly within their legitimate powers ; 
they are not punishable for deciding 
wrong. The law vests in them the 
power to judge, and it will presume that 
they judge honestly, even though tliere 
may be reason to apprehend that they 
judge erroneously; they cannot, there- 
fore, be held responsible for any such 
decision, unless upon evidence which 
clearly establishes proof of corruption, 
or other wilful violation of duty. It 
is within the legitimate power, and is 
the duty, of the court to superintend the 
course of the trial ; to decide upon tlie 
admission and rejection of evidence ; to 
decide upon the use of any books, pa- 
pers, documents, cases, or works of sup- 
posed authority, which may be offered 
upon either side ; to decide upon all col- 
lateral and incidental proceedings ; and 
to confine parties and counsel to the 
matters within the issue. As the jury 
have a legitimate power to return a gen- 
eral verdict, and in that case must pass 
upon the whole issue, this court are of 
opinion that tlie defendant has a right, 
by himself or his counsel, to address the 
jiiry, under the general superintendence 
of the court, upon all the material ques- 
tions involved in the issue, and to this 
extent, and in this connection, to address 
the jury upon such questions of law as 
come within the issue to be tried. Such 
address to the jury, upon questions of 
law embraced in the issue, by the de- 
fendant or his counsel, is warranted by 
the long practice of the courts in this 
Commonwealth in criminal cases, in 
which it is within the established au- 
thority of a jury, if they see fit, to re- 
turn a general verdict, embracing the 



entire issue of law and fact." 10 Mete. 
285-287. See also the opinion of Lord 
Mansfield to the same etfect, in Rex v. 
The Dean of St. Asaph, 21 How. St. Tr. 
1039, 1040; and of Mr. Hargrave, in his 
note, 276, to Co. Lit. 155, where the ear- 
lier authorities are cited. The whole 
subject, with particular reference to 
criminal cases, was reviewed with great 
learning and ability by Gilchrist, J., and 
again by Parker, C. J., in Pierce's case, 
1.3 N. H. 536, where the right of the 
jury to judge of the law was denied; re- 
cently affirmed in a A'ery elaborate opin- 
ion by Doe, J., in State v. Hodge, 50 N. H. 
510. And see, accordingly. The People 
V. Price, 2 Barb. S. C. 566 ; Townsend v. 
The State, 2 Blackf . 152 ; Davenport v. 
The Commonwealth, 1 Leigh, 588 ; Com- 
monwealth V. Garth, 3 Leigii, 761 ; Mon- 
tee V. The Commonwealth, 3 J. J. Marsh. 
1.50 ; Pennsylvania r. Bell, Addis. 160, 
161 ; Commonwealth v. Abbott, 13 Mete. 
123, 124 ; Hardy v. The State, 7 Mo. 607 ; 
Snow's case, 6 Shepl. 340, semb. contra. 
[In State v. Croteau, 23 Vt. (8 Washb.) 
14, the Supreme Court of Vermont, Ben- 
nett, J., dissenting, decided that in crim- 
inal cases the jury has the right to deter- 
mine the whole matter in issue, the law 
as well as the fact ; and the same rule is 
established in several other States. The 
legislature of Massachusetts, in 1855 
(Acts, 1855, c. 152), enacted, "that, in 
all trials for criminal offences, it shall be 
the duty of the jury to try, according to 
established forms and principles of law, 
all causes which shall be committed to 
them, and, after having received the in- 
structions of the court, to decide at their 
discretion, by a general verdict, both 
the fact and law involved in the issue, 
or to find a special verdict at their elec« 
tion ; but it shall be the duty of the 
court to superintend the course of the 
trials, to decide upon the admission and 
rejection of evidence, and upon all ques- 
tions of law raised during the trials, and 
upon all collateral and incidental pro- 
ceedings, and also to charge the jury 
and to allow bills of exception, and the 
court may grant a new trial in cases of 
conviction." This act has been before 
the Supreme Judicial Court, for exposi- 
tion and construction upon exceptions 
taken to the ruling of the court below 
in the trial of an indictment against a 
defendant for being a common seller of 
intoxicating liquors, and the court has 
decided, as appears by a note of their 



64 



LAW OF EVIDENCE. 



[PAET n. 



though he may, at his discretion, take the opinion of the jury 
upon them. But where the question is mixed, consisting of law 
and fact, so intimately blended as not to be easily suscej^tible of 
separate decision, it is submitted to the jury, who are first in- 



decision in the Monthly Law Reporter 
for September, 1857 (Commonwealth v. 
Anthes, 20 L. R. 298), as follows : " Upon 
the question whether this statute pur- 
ports to change the law as already ex- 
isting and recognized in Commonwealth 
V. Porter, 10 Mete. 263, the court were 
equally divided. But by a majority of 
the court it was held, that, if such change 
of the law is contemplated by the stat- 
ute, the same is void." s. c. 6 Gray, 
185. See also State v. McDonnell, 82 Vt. 
531-553.] 

The application of this doctrine to 
particular cases, though generally uni- 
form, is not perfectly so where the ques- 
tion is a mixed one of law and fact. 
Thus the question of probable cause be- 
longs to the court ; but where it is a 
mixed question of law and fact inti- 
mately blended, as, for example, where 
the party's belief is a material element 
in the question, it has been held right to 
leave it to the jury, with proper instruc- 
tions as to the law. McDonald v. Rooke, 

2 Bing. N. C. 217; Haddrick v. Raine, 
12 Ad. & El. N. s. 267. And see Taylor 
V. Willans, 2 B. & Ad. 845 ; 6 Bing. 183 
[Panton v. Williams, 2 Q. B. 192; Turner 
r. Ambler, 10 Id. 252 ; West v. Baxendale, 
9 C. B. Ul ; Lister v. Perryman, i L. R. 
H. of L. 521] ; post, vol. ii. § 4-54. The 
judge has a right to act upon all the un- 
contradicted facts of the case ; but where 
the credibility of witnesses is in question, 
or some material fact is in doubt, or some 
inference is attempted to be drawn from 
some fact not distinctly sworn to, the 
judge ought to submit the question to 
the jury. Mitchel v. Williams, 11 M. & 
W. 216, 217, per Alderson, B. 

In trespass tie bonis asportatis, the bona 
Jidis of the defendant in taking the 
goods, and the reasonableness of his be- 
lief that he was executing his duty, and 
of his suspicion of the plaintiff, are ques- 
tions for the jury. Wedge v. Berkeley, 
G Ad. & El. 063; Ilazeldine v. Grove, 

3 Ad. & El. X. s. 997; Hughes v. Buck- 
land, 15 M. & W. 346. In a question of 
pediijree, it is for the judge to decide 
whether the person whose declarations 
are offered in evidence was a member of 
the family, or so related as to be entitled 
to be heard on such a question. Doe v. 
Davies, 11 Jur. 6U7; 10 Ad. & El. n. s. 
814. 

The question, what are M.«i<a/ covenants 



in a deed, is a question for the jury, and 
not a matter of construction for the court. 
Bennett v. Womack, 3 C. & P. 96. 

In regard to reasonableness of time, 
care, skill, and the like, there seems to 
have been some diversity in the applica- 
tion of the principle ; but it is conceded 
that, " whether there has been, in any par- 
ticular case, reasonable diligence used, or 
whether unreasonable delay has occur- 
red, is a mixed question of law and fact, 
to be decided by the jury, acting under 
the direction of the judge, upon the par- 
ticular circumstances of each case." Mel- 
lish V. Hawdon, 9 Bing. 410, per Tindall, 
C. J. ; Nelson v. Patrick, 2 Car. & K. Gil, 
per Wilde, C. J. The judge is to inform 
the jury as to the degree of diligence, or 
care or skill which the law demands of 
the party, and what duty it devolves on 
him, and the jury are to find whether 
that duty has been done. Hunter v. Cald- 
well, 11 Jur. 770; 10 Ad. & El. x. s. 69; 
Burton v. Griffiths, 11 M. & W. 817; 
Eacey v. Hurdom, 3 B. & C. 213 ; Stew- 
art V. Cautv, 8 M. & W. 160; Parker v. 
Palmer, 4 B. & Al.l. 387 ; Pitt v. Shew, 
Id. 206; Mount v. Larkins, 8 Bing. 108; 
Phillips V. Irving, 7 M. & Gr. 325 ; Keece 
V. Rigby, 4 B. & Aid. 202. But where 
the duty in regard to time is established 
by uniform usage, and the rule is well 
known; as in the case of notice of the 
dishonor of a bill or note, where the ])ar- 
ties live in the same town ; or of the duty 
of sending such notice by the next post, 
packet, or other siup ; or of the reasona- 
ble hours or business hours of the da_v, 
within which a bill is to be i)rescnted, or 
goods to be delivered, or tlie like, — in 
such cases, the time of the fact l>eing 
proved, its reasonableness is settled by 
the rule, and is declared b3' the judge. 
See Story on Bills, §§ 231-234, 338, 349; 
post, vol. ii. !5§ 178, 179, 186-188 [Watson 
V. Tarpley, 18 How. (U. S.) 517]. 

Whether by the word "month," in a 
contract, is meant a calendar or lunar 
month, is a question of law ; but whether 
parties, in the jiarticular case, intended 
to use it in the one .sense or the other, is 
a question for the jury, upon the evidence 
of circumstances in the case. Simpson 
V. Margitson, 12 Jur. 155; Lang v. Gale, 
1 M. & S. Ill; Hutchinson v. liowker, 5 
M. & W. 535; Smith v. Wilson, 3 B. & 
Ad. 728; Jolly r. Young, 1 E.sp. l&G; 
Walker v. Hunter, 2 M. Gr. & Sc. 324. 



CHAP. I.] 



THE KELEYAXCY OF EVIDENCE. 



65 



structed by the judge in the principles and rides of haw by which 
they are to be governed in finding a verdict ; and these instruc- 
tions they are bound to follow.^ If the genuineness of a deed is 
the fact in question, the preliminary proof of its execution, given 
before the judge, does not relieve the party offering it from the 
necessity of proving it to the jury.^ The judge only decides 
whether there is, j^rhna facie, any reason for sending it at all to 
the jury .3 



1 1 Stark. Evid. 510, 519-526; Hutch- 
inson t". Bowker, 5 M. & W. 535; Wil- 
liams V. Byrne, 2 N. & P. 139 ; McDonald 
V. Rooke, 2 Bing. N. C. 217 ; James i'. 
Phelps, 11 Ad. & El. 483 ; s. c. 3 P. & D. 
231 ; Panton v. Williams. 2 Ad. & El. n. s. 
169; Townsend y. The State, 2 Blackf. 
151; Montgomery i'. O'lio, 11 Ohio, 424. 
Questions of interpretation, as well as of 
construction of written instruments, are 
for the court alone. Infra, § 277, n. (1). 
But where a doubt as to the application 
of the descriptive portion of a deed to 
external objects arises from a latent am- 
biguity, and is therefore to be solved by 
parol evidence, the question of intention 
is necessarily to be determined by the 
jury. Reed v. Proprietors of Locks, &c., 
8 How. S. C. 274 [Savignac v. Garrison, 
18 lb. 136]. 

2 Ross V. Gould, 5 Greenl. 204. 

3 The subject of the functions of the 
judge, as distinguished from those of the 
jury, is fully and ably treated in an ar- 
ticle in the Law Review, No. 3, for May, 
1845, p. 27-44. [It is the province of 
the judge who presides at the trial to 
decide all questions on the admissibility 
of evidence. It is also his province to 
decide any preliminary questions of fact, 
however intricate, the solution of wiiich 
may be necessary to enable him to deter- 
mine the other question of admissibility. 
And his decision is conclusive, unless he 
saves the question for revision bj' the 
full court, on a report of the evidence, 
or counsel bring up the question on a 
bill of exceptions which contains a state- 
ment of the evidence. Gorton v. Had- 
sell, 9 Cush. 511 ; State v. Pike, 49 N. H. 
398; Bartlett v. Smith, 11 ^lees. & Wcls. 
483. Tims the question whether the ap- 
plication to a justice of the peace, under 
a statute, to call a meeting of the pro- 
prietors of a meeting-house, was signed 
by five at least of such proprietors, as 
preliminaiy to the question of the ad- 
missibility of tl)e records of such meet- 
ing, is for the judge, and not for the jury. 
Gorton v. Hadseil, ubi supra. Where the 
admissibility of evidence depends upon 

VOL. I. 



the existence of any preliminar}' fact or 
condition, it is for the judge to decide 
whether the fact or condition exists, as 
whether the witness is an expert. Com. 
V. Williams, 105 Mass. 62 ; or a dying dec- 
larant entertained hope of recovery. State 
i;. Tilghman, 11 Ired. (N. C.) Law, 513; 
Rex 1-. Hunter, 1 Stark. 523; or whether 
the writing to be used as a test in com- 
parison of handwritings is sufficiently 
proved. Com. v. Coe, 115 Mass. 481; or 
a witness has sufficient mental capacity 
to be admissible, Coleman v. Com. Sup. 
Ct. Va. 2 Am. Law Times, n. s. 390; 
and what subjects an expert may testify 
upon, Jones r. Tucker, 41 N. H. 546 ; 
whether certain declarations were so far 
part of the res qt-stce as to be admissible, 
State V. Pike, 5l N. H. 105; and whether 
possession of stolen property is suffi- 
ciently recent to afford the presumption 
that it was stolen by the possessor, 
State V. Hodge, 50 N. H. 510. Other in- 
stances : Whether a confession is induced 
by threats, Rex v. Hucks, 1 Stark. 523 ; 
whether a witness is unable to attend as 
preliminary to the admission of his dep- 
osition, Beaufort v. Crawshay, 1 L. R. 
C. P. 699 ; or is absent from collusion, 
Egan V. Larkin, 1 Arms. M. & O. 403 ; or 
a document has been dulj' executed or 
stamped, Bartlett v. Smith, 11 M. & W. 
483; or comes from the proper custod}^, 
Doe V. Keeling, 11 Q. B. 889; or be the 
original paper required, Froude v. Hobbs, 
1 Fost. & Fin. 612; or sufficient search 
has been made to warrant the introduc- 
tion of secondary evidence, Bartlett v. 
Smith, 7ibi sup., and generallj' all other 
incidental questions bearing upon the 
admissibility of the evidence offered. 
Relevancy and admissibility are for the 
judge, credibility and weiglit are for the 
jury. The construction of a written 
document, where the meaning is to be 
gathered from the document itself, is for 
the court. But where the meaning can 
only be determined hy reference to ex- 
trinsic facts, tiie document and the facts 
must be submitted to tiie jurv. Gibbs 
V. Gilead, Ecci. Soc, 38 Coun. 153. The 



66 LAW OF EVIDENCB. [PAET H. 

§ 50. General rules as to relevancy. The production of evidence 
to the jury is governed by certain principles, which maybe treated 
under four general heads or rules. The first of these is, that the 
evidence must corresj)ond with the allegations^ and be confined to 
the point in issue. The second is, that it is sufficient, if the sub- 
stance only of the issue be proved. The third is, that the burden 
of proving a proposition, or issue, lies on the party holding the 
affirmative. And the fourth is, that the best evidence of which 
the case, in its nature, is susceptible, must always be produced. 
These we shall now consider in their order. 

§ 51. First. Allegations, Issue. The pleadings at common law 
are composed of the written allegations of the parties, terminat- 
ing in a single proposition, distinctly affirmed on one side, and 
denied on the other, called the issue. If it is a proposition of 
fact, it is to be tried by the jury, upon the evidence adduced. 
And it is an established ride, which we state as the rmsT eule, 
governing in the production of evidence, that the evidence offered 
must correspo7id ivith the allegations., and he confined to the point 
in issue. ^ This rule supposes the allegations to be material and 
necessary. Surplusage, therefore, need not be proved ; and the 
proof, if offered, is to be rejected. The term surplusage compre- 
hends whatever may be stricken from the record, without de- 
stroying the plaintiff's right of action ; as if, for example, in suing 
the defendant for breach of warranty upon the sale of goods, he 
should set forth, not only that the goods were not such as the de- 
fendant warranted them to be, but that the defendant well knew 
that they were not.^ But it is not every immaterial or unneces- 
sary allegation that is surplusage ; for if the party, in stating his 
title, should state it with unnecessary particularity, he must 
prove it as alleged. Thus, if, in justifying the taking of cattle 
damage-feasant, in which case it is sufficient to allege that they 
were doing damage in his freehold, he should state a seisin in fee, 
which is traversed, he must prove the seisin in fee ; ^ for if tliis 

lex fori determines the nature, amount, and the necessity ^r a strict adlierence 

and mode of proof. ^lostyn i\ Faliri^as, to it, are well cxjilained and illustrated 

1 Cowp. 174; Bain )•. Whitehaven R. R. in Malcomson v. Clayton, lo Moore, P. 

Co., 3 11. of L. 100; Yates v. Thompson, C. C. 11)8] 

3 C. & F. 677; Brown v. Thornton, 6 Ad. - Williamson v. Allison, 2 East, 440; 

& El. 185; Downer v. Chessborough, ^(3 Peppin v. Solomons, 5 T. R. 49G; IJrom- 

Conn. 38. And see also post, vol. iii. field i'. Jones, 4 B. & C. 380. 
§ 28.] 3 Sir Francis Leke's case, Dyer, .305; 

1 See Best's Principles of Evidence, 2 Saund. "lOCm, n. 22; Stc])hcn on Plead- 

§§ 22y-24y. [The reason for this rule, ing, 201, 202; Bristnw v. Wrigiit, Doug. 



CHAP. I.] THE RELEVAiTCY OF EVIDENCE. 67 

were stricken from the declaration, the phaintiffs entire title 
would be destroyed. And it appears that in determining the 
question, whether a particular averment can be rejected, regard 
is to be had to the nature of the averment itself, and its connec- 
tion with the substance of the charge, or chain, rather than to its 
srrammatical collocation or structure.^ 

§ 51 a. Evidence must tend to prove issue. It is not necessary, 
however, that the evidence should bear directly upon the issue. 
It is admissible if it tends to prove the issue, or constitutes a link 
in the chain of proof ; although, alone, it might not justify a ver- 
dict in accordance with it.^ Nor is it necessary that its relevancy 
should appear at the time when it is offered ; it being the usual 
course to receive, at any proper and convenient stage of the trial, 
in the discretion of the judge, any evidence which the counsel 
shows will be rendered material by other evidence, which he un- 
dertakes to produce. If it is not subsequently thus connected 
with the issue, it is to be laid out of the case.^ 

§ 52. Collateral facta inadmissible. This rule excludes all evi- 
dence of collateral facts, or those which are incapable of affording 
any reasonable presumption or inference as to the principal fact 
or matter in dispute ; and the reason is, that such evidence tends 
to draw away the minds of the jurors from the point in issue, and 
to excite prejudice, and mislead them ; and moreover the adverse 
party, having had no notice of such a course of evidence, is not 
prepared to rebut it.* Thus, where the question between land- 
lord and 'tenant was, whether the rent was payable quarterly, or 
half-yearly, evidence of the mode in which other tenants of 

665 ; Miles i. Sheward, 8 East, 7, 8, 9 ; 1 may fairly influence the belief of the 

Smith's Leading Cases, 328 n. jury as to the whole case. Melhuish i'. 

1 1 Stark. Evid. 386. Collier, 15 Ad. & El. n. s. 878. 

2 McAllister's case, 11 Shepl. 139; 3 McAllister's case, s!//)m; Van Buren 
Haughey v. Strickler, 2 Watts & Serg. r. Wells, 19 Wend. 203; Crenshaw v. 
411; Jones y. Vanzandt, 2 ^McLean, 596; Davenport, 6 Ala. 390; Tuzzle v. Bar- 
Lake i;. Mumford, 4 Sm. & Marsh. 312; clay. Id. 407; Abney v. Kingsland, 10 
Belden v. Lamb, 17 C»nn..441. [Tams Ala. 3-55; Yeatman v. Hart, 6 Humph. 
V. Bullitt, 35 Penn. St, 308; Schuchardt 375 [Harris v. Holmes, 30 Vt. 352; U. S. 
r. Aliens, 2 Wallace (U. S.), 359 ; Tucker v. Flowery, 1 Sprague's Dec. 109; and no 
V. Peaslee, 36 N. H.*jil67.] Where the exception lies to the order in which-the 
plaintiff's witness aenied the existence judge admits the evidence. Com. v. 
of a material fact, and-^estified that per- Davis, 107 Mass. 210]. 

sons connected with tlie plaintiff had * Infra, § 448. But counsel may, on 
offered him money to assert its exist-, cross-examination, inquire as to a fact 
ence, the •plaintiff was permitted, not apparently irrelevant, if he will under- 
only to prove the fact, but to disprove take afterwards to show its relevancy 
the subornation, on the ground that this by other evidence. Haigh v. Belcher, 7 
latter fact had become material and rel- C. & P. 339. 
evant, inasmuch as its truth or falsehood 



68 LAW OF EVIDENCE. [PART H. 

the same landlord paid their rent was held inadmissible.^ And 
where, in covenant, the issue was whether the defendant, who 
was a tenant of the plaintiff, had committed waste, evidence of 
bad husbandry, not amounting to waste, was rejected.^ So, where 
the issue was, whether the tenant had permitted the premises to 
be out of repair, evidence of voluntary waste was held irrelevaiit.^ 
This rule was adhered to, even in the cross-examination of wit- 
nesses ; the party not being permitted, as will be shown here- 
after,* to ask the witness a question in regard to a matter not 
relevant to the issue, for the purpose of afterwards contradicting 
him.^ 

§ 53. Exceptions. In some cases, however, evidence has been 
received of facts which happened before or after the principal 
transaction, and which had no direct or apparent connection with 
it; and therefore their admission might seem, at first view, to 
constitute an exception to this rule. But those will be found to 
have been cases, in which the hioivledge or intent of the party 
was a material fact, on which the evidence, apparently collateral, 
and foreign to the main subject, had a direct bearing, and was 
therefore admitted. Thus, when the question was, whether the 
defendant, being the acceptor of a bill of exchange, either knew 
that the name of the payee was fictitious, or else had given a 
general authority to the drawer, to draw bills on him payable to 
fictitious persons, evidence was admitted to show, that he had 
accepted other bills, drawn in like manner, before it was possible 

1 Carter v. Pryke, Peake's Cas. 95. an action a<rainst a physician for mal- 

iSee also Ilollnghani v. Head, 4 Com. practice, tlie fact tliat lie has never called 

5. N. 8. 388.1 for any pay for the service, is irrelevant. 

2 Harris v. Mantle, 3 T. R. 307. See Baird ")■. Gillett, 47 N. Y. 18G. On qucs- 
also Balcetti v. Serani, Peake's Cas. 142; tions of value, the value of other like 
Furneaux v. Hutcliins, Cowp. 807; Doe property in the neighborhood, and sinii- 
V. Sisson, VI East, 131 ; Ilolcombe v. larly situated, is relevant, and proximity 
Hewson, 2 Cami)b. 391 ; Viney v. Bass, 1 or remoteness of time and place goes to 
Esp. 2'J2 ; Clothier v. Chapman, 14 East, the weight, not the competency, of the 
331, n. evidence. Bcnham i'. Dunbar, 103 Mass. 

8 Edge V. Pemberton. 12 M. & W. 187. 3G5.] 
[See, on this question of relevancy, opin- * See infra, §§ 448, 449, 4.50. 
ion bv Doc. J., in Darling v. Westmore- ^ Crowley v. Page, 7 Car. & P. 780; 
land, 02 N. II. 401, where it was held, con- Harris v. Tii)pct, 2 ('ami)b. 0:!7 ; Rex v. 
trary to the doctrine in Massachusetts Watson, 2 Stark. 11(5; Connnonwealth w. 
(Coilins V. Dorchester, Cush. 390, fol- Buzzel, Iti Pick. 157, 158; Ware i-. Ware, 
lowed in Hawks r. Charlemont, 110 Mass. 8 (ireenl. 42 ICooudts v. Winchester, .39 
110), in an action for damages for a de- N. H. 1]. A further reason may be, Jhat 
feet in a liighway, a horse having been the evidence, not being to a material 
frightened by a pile of lumber, — that point, cannot be the subject of an indict- 
other horses had been frightened by the mcnt for perjury. Odiorne v. Winkley, 
eame pile. See also 45 N. H. 148. In 2 Call. 51, 53. 



CHAP. I.] 



THE EELEVA2SrCY OF EVIDElSrCE. 



69 



to have transmitted them from the place at which they bore date.^ 
So, in an indictment for knowingly uttering a forged document, 
or a counterfeit bank-note, proof of the possession, or of the prior 
or subsequent utterance of other false documents or notes, though 
of a different description, is admitted, as material to the question 
of guilty knowledge or intent.^ So, in actions for defamation, 
evidence of other language, spoken or written by the defendant 
at other times, is admissible under the general issue, in proof of 
the spirit and intention of the party, in uttering the words or 
publishing the libel charged; and this, whether the language 
thus proved be in itself actionable or not.^ Cases of this sort, 



1 Gibson v. Hunter, 2 H. Bl. 288; 
Minet v. Gibson, 3 T. R. 481 ; 1 H. Bl. 
56!). 

2 Bex V. Wylie, 1 New Rep. 92, 94. 
See other examples in McKenney v. 
Dingley, 5 Greenl. 172; Bridge v. Eggles- 
ton, 14" Mass. 245 ; Rex v. BaU, 1 Campb. 
324 ; Rex v. Roberts, 1 Campb. 399 ; Rex 
V. Houghton, Russ. & Ry. 130 ; Rex v. 
Smith, 4 C. & P. 411 ; Rickman's case, 2 
East, P. C. 1035; Robinson's case. Id. 
1110, 1112; Rex v. Northampton, 2 M. & 
S. 262 ; Commonwealth v. Turner, 3 
Mete. 19. See also Bottomle.v v. United 
States, 1 Storj', 143, 144, where this doc- 
trine is clearh' expounded by Story, J. ; 
Pierce v. Hoffman, 24 Vt. 525 [Castle v. 
Bullard, 23 How. (U. S.) 172; Butler v. 
Collins, 12 Cal. 457 ; French v. White, 5 
Duer, 254. So other similar false pre- 
tences, made at or about the same time, 
are admissible on the question of intent. 
Reg. V. Francis, 12 Cox, C. C. 612 ; Com. 
f. Coe, 115 ^Slass. 481. So also other 
receipts of stolen goods from same thief, 
knowing them to be stolen, are admis- 
sible in an indictment for receiving 
stolen goods, on the question of in- 
tent, Copperman v. People, 56 N. Y. 
591 ; though it also proves a violation of 
another law, Schaser v. State, 36 Wis. 
429 ; Coleman v. People, 58 N. Y. 555 ; 
Schriedly v. State, 23 Ohio St. 130. In 
Jordan v. Osgood, 109 Mass. 457, it was 
lield that other frauds are admissible 
to prove motive and intent only where 
there is evidence that the two are parts 
of one scheme or plan of fraud com- 
mitted in pursuance of a common pur- 
pose. But see Com. v. Coe, 115 Mass. 
481 ; Huntingford v. Massey, 1 F. & F. 
960. So, in divorce cases, other adul- 
terous acts, both before and after the 
adultery charged, are admissible to show 
the character of tlie act charged. Thayer 
V. Thayer, 101 Mass. Ill, overruling 



Com. V. Tlirasher, 11 Gray (Mass.), 450; 
and Com. v. Horton, 2 Gray, 354, contra ; 
Boddy V. Boddy, 30 L. J. Pr. & Mat. 23 ; 
Com. V. Curtis, 97 ilass. 674]. 

3 Pearson v. Le Maitre, 5 M. & Gr. 
700 ; s. c. 6 Scott, N. R. 607 ; Rustell v. 
Macquister, 1 Campb. 49, n. ; Saunders 
V. Mills, 6 Ring. 213 ; Warwick v. Foulkes, 
12 M. & W. 507 ; Long v. Barrett, 7 Ir. 
Law, 439; s. c. 8 Ir. Law, 331, on error ; 
{post, vol. ii. § 418 ; 2 Starkie on Slander, 
53-57. So for the purpose of proving 
that a conveyance of property made by 
a bankrupt was fraudulent under the 
United States Bankrupt Act of 1841, be- 
cause made to defraud the plaintiff of 
his debt, evidence is admissible, tending 
to sliow that the defendant entertained 
such fraudulent intent even before the 
passage of said bankrupt act. Bigelow, 
J., in delivering the opinion of the court, 
said: "The inquiry before the jury in- 
volved two essential elements. One was 
the establishment of a fraudulent design 
on the part of the defendant towards his 
creditors ; the other was the carrjing out 
and fulfilment of that design through the 
instrumentality of the bankrupt act. To 
maintain the first of these propositions, 
as one link in the chain of evidence, 
proof of an intent, prior to the passage 
of the bankrupt act, to defraud the plain- 
tiff of his debt by a fraudulent conceal- 
ment and convej'ance of his property, 
was clearly competent. W^henever the 
intent of a party forms part of the matter 
in issue, upon the pleadings, evidence 
may be given of other acts, not in issue, 
provided they tend to establish the in- 
tent of the party in doing the acts in 
question. Rose. Crim. Ev. (3d Am. ed.) 
99. The reason for this rule is obvious. 
The only mode of showing a present in- 
tent is often to be found in proof of a like 
intent previously entertained. The ex- 
istence in the mind of a deliberate design 



70 



LAW OF EVIDENCE. 



[PAKT II. 



therefore, instead of being exceptions to tlie rule, fall strictly 
Avithin it.^ 



to do a certain act, when once proved, 
may properly lead to the inference tliat 
the intent once harbored continued and 
was carried into effect by acts long sub- 
sequent to the origin of the motive by 
wiiich they were prompted. Even in 
criminal cases, acts and declarations of a 
pnrty made at a former time are admis- 
sible to prove the intent of the same per- 
son at the time of the commission of an 
otience. 2 Phil. Ev. (3d ed.) 498; Rose. 
Crim. Ev. {3d Amer. ed.) 95. In the 
l^roof of cases involving tlie motives of 
men as influencing and giving character 
to their acts, it is impossible to confine 
the evidence within any precise limit. 
It must necessarily proceed by steps or 
stages leading to the main point in issue. 
In the case at bar, when the plaintiff had 
proved an intent on the part of the de- 
fendant to conceal his property, for the 
puri)ose of defrauding his creditors, an- 
terior to the passage of the bankrupt act, 
he had advanced one step towards the 
proof of the real issue before the jury; 
and if he satisfied the jury that this in- 
tent once harbored continued in the mind 
of the defendant, and was carried out by 
availing himself of the provisions of the 
bankrupt act, he had thus proved by a 
legitimate chain of evidence the matter 
set up in his specification as a ground for 
invalidating the defendant's discharge in 
bankruptcy." Cook v. Moore, 11 Cush. 
216,217. See also post, vol. iii. § 111. 
[A ]>arty who becomes a witness, becomes 
80 for all purposes, unless the statute 
limits his capacity, and may testify to 
his own mental processes, such as knowl- 
edge and intent, as well as to other facts. 
AVlieeldon v. Wilson, ii Maine, 1. Law- 
ton V. Chase, 108 Mass. 241.] 

1 [Under some circumstances, the proof 
of the commission of one crime may be 
evidence of the commission of another. 
Thus it has been hehl, that where a pris- 
oner was charged witli the murder of 
lier child by poison, and the defence was 
tiiat the death resulted from tlie acci- 
d(.'ntal taking of sucli poison, evidence 
was admissible to i)rove tiiat two other 
children of the prisoner and a lodger in 
lur house, within the year j)revious to the 
crime charged, had died from the same 
poison. Reg. v. Cotton, 12 Co.x's Cr. Cas. 
400, following Reg. v. Geering, 18 L. J. 
M. C. 215, anil Reg. v. Garner, 3 F. & F. 
G81 ; Reg. v. Roden, 12 Cox's Cr. Cas. 630. 
So where the defendant was tried for suf- 
focating her infant in bod, evidence was 
admitted that the deleudant had had four 



other children, who died at early ages, 
by causes not shown. Reg. v. Roden, 12 
Cox's Cr. Cas. 630, per Leech, J., who 
followed Reg. v. Cotton, t(bi supra, and 
said that the Lord Chief Justice and he 
•were consulted by Archibald, J., who 
presided in that case, and consulted also 
with Pollock, B. 

So when two persons are murdered 
at the same time, and as part of tiie 
same transaction, on an indictment for 
the murder of one, evidence of the 
murder of the other may be given if 
it tends to throw light upon the mo- 
tive whicli led to the murder. ReJk v. 
Baker, 2 M. & Rob. 53. But see also 
Rex V. Wiley, 1 N. R. 94. The murder of 
the two must be essentially one transac- 
tion. Brown v. Com., 73 Pa. St. 361 ; 
Rex V. Ellis, 6 B. & C. 147 ; Rex v. Long, 
6 C. & P. 179; Rex v. Bleasdale, 2 C. & 
K. 765. Where a prisoner is on trial for 
stealing a horse, it may be shown that 
he stole a wagon on the same night be- 
longing to another person, and used it 
with the stolen horse. Phillip v. People, 
57 Barb. (N. Y.) 353. On a trial for in- 
fanticide, a confession that the prisoner 
had before had a child in the same way, 
and had put it away, was admitted. State 
V. Shackford, 69 N. C. 486. But see Rex 
V. Cole, 1 Ph. Ev. 477. But the rule was 
more cautiously laid down in a recent 
case in Pennsylvania, where it was said 
that, to make one criminal act evidence 
of another, a connection must have ex- 
isted in the mind of the actor, linking 
them together for some j)urpose he in- 
tended to accomplish ; or it must be nec- 
essary to identify tlie person of tlie 
actor by a connection which shows that 
he who committed one act must have 
done the otiicr. Shaffner v. Com., 72 
Pa. St. 00. Evidence involving the fact 
of the commission of another crime 
is nevertheless relevant if it goes to 
show the identity of the prisoner with tlie 
criminal actor, or his proximity to the 
place where the crime was committed, 
or any other facts which, from the fact 
of tlie commission, go to show the con- 
nection of the prisoner with the crime 
charged. Rex v. Pearce, Peake, 75 ; Rex 
V. Egerton, R. & R. 375; Rex v. Briggs, 
2 M. & Rob. 199; Rex v. Rooney, 7 C. & 
P. 517. 

" In civil causes, too, evidence of col- 
lateral facts is sometimes received for 
tlie purpose of confirming the testimony 
of witnesses. For instance, where a 
party was sued on a bill of exchange, 



CHAP. I.] 



THE RELEVANCY OF EVIDENCE. 



71 



§ 53 a. Title to lauds. In proof of the otvnersMi) of laiuh, by 
acts of possession, the same hxtitude is allowed. It is impossible, 



winch had been accepted in his name by 
anotlier person, and evidence had been 
given tliat tliis person liad a general au- 
thority from the defendant to accept 
bills in his name, the court held that an 
admission by the defendant of his lia- 
bility on another bill so accepted, was 
receivable in evidence, in order to con- 
firm the witness who had spoken to the 
general authority. Llewellvn v. Winck- 
worth, la M. & W. 598. See HoUingliani 
i". Head, 27 L. J. C. P. 241 ; s. c. 4 Com. 

B. N. s. 3(58 ; Morris v. Bethell, 4 L. R. 

C. P. 7G5; s. c. 38 L. J. C. P. 377; s. c. 
5 L. R. C. P. 47. 

"Another exception to the rule ex- 
cluding evidence of collateral facts is 
recognized, where the question is a 
matter of science, and where the facts 
proved, though not directly in issue, 
tend to illustrate t/ie opinions of scien- 
tific witnesses. Thus, where the point 
in dispute was, whether a sea-wall had 
caused the choking up of a harbor, 
and engineers were called to give tlieir 
opinions as to the effect of the wall, 
proof that other harbors on the same 
coast, where there were no embankments, 
had begun to be choked about the same 
time as the harbor in question, was ad- 
mitted, as such evidence served to elu- 
cidate the reasoning of the skilled wit- 
nesses. Folkes V. Chadd, 3 Doug. 157 ; 
McFadden v. Murdock, 1 I. R. C. L. 211. 

" In some cases evidence has been 
received of facts whicli happened be- 
fore or after the principal transaction, 
and wliich had no direct or apparent 
connection with it ; and, consequently, 
their admission might seem, at first 
view, to constitute another exception 
to this rule. But in these cases, the 
knoivle(l(/e, or good faith, or intent of the 
party was a material fact, on which 
the evidence, apparently collateral, and 
foreign to the main subject, had a di- 
rect bearing. The admission, there- 
fire, of such evidence, instead of being 
an exception to the rule, falls strictly 
within it. Thus, where the question was, 
whether the acceptor of a bill of ex- 
change either knew that the name of the 
payee was fictitious, or else had given to 
the drawer a general authority to draw 
bills on him payable to fictitious persons, 
evidence was admitted to show that he 
had accepted other bills, drawn in like 
manner, before it was possible to have 
transmitted them from the place at which 
they bore date. Gibson v. Hunter, 2 H. 



Bl. 288. So, in an action for an assault 
and consequent injury, where evidence 
for the defence was given that the plain- 
tiff had ascribed her injury to a pre- 
vious accident, she was allowed to show 
that in fact no such accident had ever 
occurred. Melhuish v. Collier, 15 Q. B. 
878. So, on any trial, evidence will be 
admissible to prove or disprove any at- 
tempt at subornation of witnesses. Id. 
So, in an action for fraudulently repre- 
senting that a trader was trustworthy, 
whereby the plaintiff was induced to sell 
him goods, and thus lost the price of 
them, the court permitted the defendant 
to call fellow-townsmen of the trader to 
state that, at the time when the repre- 
sentation was made, the man was, ac- 
cording to their belief, in good credit. 
Sheen v. Bimipstead, 1 H. & C. 858; 
affirmed in Ex. Ch. 2 New R. 370 ; 2 H. & 
C. 193 ; s. c. 32 L. J. Ex. 271. So, in an 
action for work and labor in fixing rail- 
ings to certain houses belonging to the 
defendant, where the defence was that 
the plaintiff had given credit to a third 
person, by whom the houses were built 
under a contract, the builder was allowed 
to state that the order was given by him 
on his own account, and not as agent for 
the defendant ; and that the defendant 
had actually paid him for the building 
of the houses, including the charge for 
the railings. This evidence of payment 
was objected to, but the court held that 
it was clearly admissible, as tending to 
show the bona files of the defence. Ger- 
ish V. Chartier, 1 Com. B. 13. In another 
case, where a plaintiff sought to set aside 
a contract on the ground of his having 
been insane when it was made, the court 
held, upon an issue as to whether or not 
the defendant was at the time aware of 
the insanity, that evidence of the plain- 
tiff's conduct, at diflferent times both be- 
fore and after the date of the contract, 
was admissible, for the purpose of show- 
ing that the madness was of such a 
character as must have been apparent 
to any one who had had opportunities 
of observation like those afforded to the 
defendant. Beavan v. McDonnell, 23 L. 
J. Ex. 326 ; s. c. 10 Ex. R. 184." Taylor, 
Ev. §§ 315-317. 

[It will generally be found, that the 
circumstances of the parties to the suit, 
and the position in which they stood 
when the matter in controversy oc- 
curred ("Woodman v. Buchanan, 5 L. 
R. Q. B. 285), are proper subjects of 



72 



LAW OF EVIDENCE. 



[PAET II. 



as has been observed, to confine tlie evidence to the precise spot 
on which a supposed trespass was committed ; evidence may be 
given of acts done on other parts, provided there is such a com- 
mon character of locality between those parts and the spot in 
question, as woidd raise a reasonable inference in the minds of 
the jury that the place in dispute belonged to the party, if the 
other parts did. The evidence of such acts is admissible propria 
vigore, as tending to prove that he who did them is the owner of 
the soil ; though if they were done in the absence of all persons 
interested to dispute them, they are of less weight.^ 

§ 54. General character. To this rule may be referred the ad- 
missibility of evidence of the general character of the parties.^ 
In civil cases, such evidence is not admitted, unless the nature of 
the action involves the general character of the party, or goes 
directly to* affect it.^ Thus, evidence impeaching the previous 
general character of the wife or daughter, in regard to chastity, 
is admissible in an action by the husband or father for seduction ; 
and this, again, may be rebutted by counter proof.* But such 
evidence, referring to a time subsequent to the act complained of, 
is rejected.^ And generally, in actions of tort, wherever the de- 
fendant is charged with fraud from mere circumstances, evidence 
of his general good character is admissible to repel it.^ So, also, 



evidence ; and indeed the change in 
the law, making parties witnesses for 
tiiemselves, has rendered tliis proof of 
"surrounding circumstances" still more 
important than formerly (Dowling v. 
Dowling, 10 Ir. Law, 211), where it was 
held tliat in an action for money lent, 
the poverty of the lender was held to be 
relevant 1 

1 Jones V. Williams, 2 M. & W. 320, 
per Parke, B. And see Doe v. Kemp, 7 
IJini,'. 332; 2 Ring. N. C. 102 (Simpson v. 
])endy, 3(1 Eng. L. & Eq. 3tiC.|. 

- [Commonwealtii I.'. Webster, 5 Cush. 
824,325. Ciiaracter is " reputation," or 
general standing in pubhc opinion. Reg. 
V. Kowton, 34 L. J. M. C. 57. See as to 
character of witnesses, post, § 4ij'j.) 

^ Attorney-General v. Bowman, 2 B. 
& P. 532, expressly ado]ited in Fowler v. 
il'vtna Fire Ins. Co., Cowen, 673, 075 ; 
Anderson v. Long, 10 S. & H. 55 ; Hum- 
phrey V. Humphrey, 7 Conn. 110; Nash 
V. Gilkeson, 4 S. & 11. 352; Jetlries v. 
Harris, 3 Hawks, 105 [Pratt v. Andrews, 
4 Comst. 4',)3 ; Porter r. Seller. 23 Penn. 
St. 424 ; see also 24 Id. 401, 40« ; Gold- 



smith V. Picard, 27 Ala. 142 ; Lander r. 
Seaver, 32 Vt. 114]. 

* Bate V. Hill, 1 C. & P. 100; Verry 
V. Watklns, 7 C. & P. 308; Carpenter v. 
Wahl, 11 Ad. & El. 803 ; s. c. 3 P. & D. 
457 ; Elsam v. Faucett, 2 Esp. 502; Dodd 
r. Norris, 3 Campb. 519. See contra, 
McKea v. Lilly, 1 Iredell, 118. 

^ Elsam V. Faucett, 2 Esp. 502; Coote 
V. Berty, 12 Mod. 232. The rule is the 
same in an actiim by a woman for a 
breach of a promise of marriage. See 
Johnson v. Caulkins, 1 Johns. Cas. 110; 
Boynton v. Kellogg, 3 Mass. 189 ; Foulkes 
V. Sellway, 3 Esp. 230 ; Bamlield v. Mas- 
sey, 1 Campb. 400; Dodd v. Norris, 3 
Campb. 519. 

6 ilnan v. Perry, 3 Caines, 120. See 
also Walker v. Stephenson, 3 Esp. 284. 
This case of Kuan v. Perry has some- 
times been mentioned with disapproba- 
tion ; but, when correctly understood, it 
is conceived to be not opposed to tlie 
well-settled rule, that evidence of general 
character is admissible only in cases 
where it is involved in the issue. In 
that case the connnander of a national 



CHAP. I.] 



THE PvELEYANCY OF ETHDENCE. 



73 



ill criminal prosecutions, tlie charge of a rape, or of an assault 
with intent to commit a rape, is considered as involving not only 
the general character of the prosecutrix for chastity, but the par- 
ticular fact of her previous criminal connection with the prisoner, 
though not with other persons.^ And in all cases, where evidence 



frigate was sued in trespass for seizJig 
aiul detaining the plaintiff's vessel, airl 
taking her out of her course, by means 
whereof she was captured by an enemy. 
The facts were clearly proved ; but the 
question was, whether the defendant 
acted in honest obedience to his instruc- 
tions from the navy department, which 
were in the case, or with a franduknt in- 
lent, and in collusion with the captors, as 
the plaintiff alleged to the jury, and at- 
tempted to sustain by some of the cir- 
cumstances proved. It was to repel this 
imputation of fraudulent intent, inferred 
from slight circumstances, that the de- 
fendant was permitted to appeal to his 
own "fair and good reputation." And 
in coniirming this decision in bank, it 
was observed that, " in actions of tort, 
and especially charging a defendant with 
gross depravity and fraud, upon circum- 
stances merel}', evidence of uniform in- 
tegrity and good character is oftentimes 
the only testimony which a defendant 
can oppose to suspicious circumstances." 
On this ground this case was recognized 
by the court as good law, in Fowler v. 
yEtna Fire Ins. Co., 6 Cowen, 675. And 
five years afterwards, in Townsend v. 
Graves, o Paige, 455, 45(3, it was again 
cited with approbation by Chancellor 
Walworth, who laid it down as a general 
rule of evidence, " that if a party is 
charged with a crime, or any other act 
involving moral turpitude, which is en- 
deavored to be fastened upon him by 
circumstantial evidence, or by the testi- 
mony of witnesses of doubtful credit, he 
may introduce proof of his former good 
character for honestj' and integrity, to 
rebut the presumption of guilt arising 
from such evidence, which it may be im- 
possible for him to contradict or ex- 
plain." In Gougli V. St. John, 16 Wend. 
046, the defendant was sued in an action 
on the case, for a false representation as 
to the solvency of «. third person. The 
representation itself was in writing, and 
verbal testimony was offered, tending to 
show that the defendant knew it to be 
false. To rebut this charge, proof that 
the defendant sustained a good character 
for honesty and fairness in dealing, was 
offered and admitted. Cowen, J., held, 
that the fraudulent intent was a neces- 
sary inference of law from the falsity of 



the representation; and that the evidence 
of character was improjierly admitted. 
He proceeded to cite and condemn the 
case of Ruan v. Perry, as favoring the 
general admissibility of evidence of 
character in civil actions, for injuries to 
property. But such is manifestly not 
the doctrine of that case. It only de- 
cides, that where intention (not knoiclech/e) 
is the point in issue, and the proof con- 
sists of slight circumstances, evidence 
of character is admissible. The other 
judges agreed that the evidence was im- 
properly admitted in tha#ca»e, but said 
nothing as to the case of Ruan v. Perry. 
They denied, however, that fraud was in 
such cases an inference of law. [The 
cases cited hardly support the text. 
Ruan V. Perry, S Caines, was " long since 
overruled." Bronson, C. J., in Pratt v. 
Andrews, 4 N. Y. 493. See also Harrison 
V. Russell, I Wilson (Sup. Ct. Ind.),3y2; 
Porter v. Seller, 23 Pa. St. 424.] 

The ground on which evidence of 
good character is admitted in criminal 
prosecutions is this, that the intent with 
which the act, charged as a crime, was 
done, is of the essence of the issue ; 
agreeably to the maxim, " Nemo reus 
est, nisi mens sit rea ; " and the prevailing 
character of the party's mind, as evinced 
by the previous habit of his life, is a 
material element in discovering that in- 
tent in the instance in question. Upon 
the same principle, the same evidence 
ought to be admitted in all other cases, 
whatever be the form of proceeding, 
where the intent is material to be found 
as a fact involved in the issue. 

1 Rex V. Clarke, 2 Stark. 241 ; 1 Phil. 
& Am. on Evid. 490 ; Low v. Mitchell, 
Shepl. 372; Commonwealth v. Murphy, 
14 Mass. 387; 2 Stark. Evid. (by Met- 
calf) 369, n. (1) ; Rex v. Martin, 6 V. & 
C. 562; Rex v. Hodson, Russ. & Ry. 211; 
Regina v. Clay, 5 Cox, Cr. C. 146. [And 
for an indecent assault, Cora. v. Kendall, 
113 Mass. 210] But in an action on the 
case for seduction, evidence of particular 
acts of unchastity with other persons is 
admissible. Verry v. Watkins, 7 C. & P. 
308. Where one is charged with keeping 
a house of ill fame ajler the statute went 
into operation, evidence of the bad rep- 
utation of the house bffure that time, was 
held admissible, as conducing to prove 



74 



LAW OF EVIDENCE. 



[PAET n. 



is admitted touching the general character of the party, it ought 
manifestly to bear reference to the nature of the charge against 
him.^ 

§ 55. Same subject. It is not every allegation of fi-aud that 
may be said to -put the character in issue ; for, if it were so, the 
defendant's character would be put in issue in the ordinary form 
of declaring in assumpsit. This expression is technical, and con- 
fined to certain actions, from the nature of wliich, as in the pre- 
ceding instances, the character of the parties, or some of them, is 
of particular importance. This kind of evidence is therefore 
rejected, wherever the general character is involved by the plea 
only, and not by the nature of the action.^ Nor is it received in 
actions of assault and battery ; ^ nor in assumpsit ; * nor in trespass 
on the caseior malicious prosecution;^ nor in an information for 
a penalty for violation of the civil, police, or revenue laws ; ^ nor 
in ejectment, brought in order to set aside a will for fraud com- 
mitted by the defendant.' Whether evidence impeaching the 
plaintiff's previous general character is admissible in an action of 
slander, as affecting the question of damages, is a point which has 
been much controverted ; but the weight of authority is in favor 
of admittinq; such evidence.^ But it seems that the character of 



tliat it sustained the same reputation 
afterwards. Cadwell v. Tiie State, 17 
Conn. 467. [Where the jury assess the 
fine, evidence of tlie defendant's charac- 
ter is material with reference to the 
amount of tlie fine, as well as to the 
proof of the crime. Rosenbaum ;;. State, 
33 Ala. 354. And see also post, vol. iii. 
§ 25, et strj.] 

1 Douglass V. Tousey, 2 Wend. 352. 

2 Anderson v. Long, 10 S. & R. 55; 
Potter V. Webb ct nl. 6 Greenl. 14 ; Greg- 
ory I'. Thomas, '1 Bibb, 280. 

3 Givens v. Bradley, 3 Bibb, 192. But 
in the admiralty courts, where a seaman 
sues against tiie master for damages, for 
illegal and unjustifiable punishment, his 
general conduct and character during 
the voyage are involved in tlie issue. 
rettingiU y. Dinsmore, Daveis, 208, 214. 

* Nash V. Gilkeson, 5 S. & R. 352. 
6 Gregory v. Thomas, 2 Bibb, 286. 

" Attorney-General v. Bowman, 2 B. 
& P. 5.32, n. 

• Goodright v. Hicks, Bull. N. P. 296. 
[Nor is the character of tiie plaintiff in- 
volved in the issue, where the action is 
on a policy of insurance against loss by 
lire, and the defence is that the fire was 



occasioned by the wilful and fraudulent 
act of the plaintiff. The nature of the 
action excludes all such inquiry or evi- 
dence in relation thereto. Sclunidt v. 
New York, &c., Ins. Co., 1 Gray, 529, 
535. Nor in an action for commencing a 
suit against the plaintiff without au- 
thority, where the plaintiff at the trial 
gives notice that he shall claim no dam- 
ages for special injury to his character 
by reason of the suit. Smith v. Hynd- 
man, 10 Cush. 554. Nor in an ax."tion 
for negligence to show that the plaintiff 
\ised due care in this particular case. 
McDonald v. Savoy, 110 Mass. 49.] 

8 2 Starkie on Slander, 88, 81)-'.»5, n. ; 
Root V. King, 7 Cowen, 613; Bailey v. 
Hyde, 3 Conn. 463 ; Bennett v. Hyde, 6 
Conn. 24; Douglass v. Tousey, 2 Wend. 
353; Inman v. Foster, 8 Wend. 602; 
Larned v. Buflfington, 3 Mass. 552 ; Wal- 
cott V. Hall, G Mass. 514 ; Ross v. Lap- 
ham, 14 Mass. 275; Bodwell v. Swan, 3 
Pick. 378; Buford v. McLuny, 1 Nott & 
McCord, 208 ; Sawyer v. Eifert, 2 Nott & 
McCord, 511; King i*. Waring et ux. 5 
Esp. 14; Rodriguez v. Tadmire, 2 Esp. 

721; V. Moore, 1 M. & S. 284; 

Earl of Leicester v. Walter, 2 Campb. 



CHAP. I.] 



THE RELEVANCY OF EVIDENCE. 



the party, in regard to any particular trait, is not in issue, unless 
it be the trait wliich is involved in the matter charged against 
him ; and of tliis it is only evidence of general reputation^ which 
is to he admitted, and not positive evidence of general bad con- 
duct.^ 



251 ; Williams v. Callendar, Holt's Cas. 
307; 2 Stark. Evid. 216. In Foot v. 
Tracy, 1 Johns. 45, the Supreme Court 
of New York was equally divided upon 
this question ; Kent and Thompson, JJ., 
being in favor of admitting the evi- 
dence, and Livingston and Tompkins, 
JJ., against it. [In a later case. Spring- 
stein V. Field, Anthon, 185, Spencer, J., 
said he had no doubt about the admissi- 
bility of the evidence offered in the case 
of Foot V. Tracy, but for particular 
reasons connected with that case, he 
forbore to express any opinion on the 
hearing of the same. In Paddock v. 
Salisbury, 2 Cowen, 811, the question 
came again before the Supreme Court of 
New York, and the evidence was admit- 
ted in mitigation of damages, under the 
general issue, which was the only plea 
in that case.] In England, according to 
the later authorities, evidence of the 
general bad character of the plaintiff 
seems to be regarded as irrelevant, and 
therefore inadmissible. Phil. & Am. on 
Evid. 488, 489 ; Cornwall v. Richardson, 
Ry. & Mood. 305 ; Jones v. Stevens, 11 
Price, 235. In this last case it is ob- 
servable, that though the reasoning of 
the learned judges, and especially of 
Wood, B., goes against the admission 
of the evidence, even though it be' of the 
most general nature, in any case, yet the 
record before the court contained a plea 
of justification aspersing the professional 
character of the plaintiff in general aver- 
ments, without stating any particular 
acts of bad conduct ; and the point was, 
whether, in support of this plea, as well 
as in contradiction of the declaration, 
the defendant should give evidence that 
the plaintiff was of general bad character 
and repute, in his practice and business 
of an attorney. The court strongly con- 



demned the pleading as reprehensible, 
and said that it ought to have been de- 
murred to, as due to the court, and to 
the judge who tried the cause. See 
J'Anson v. Stuart, 1 T. R, 747 ; 2 Smith's 
Leading Cases, 37. See also RhcJes v. 
Punch, 8 McCord, 66. In WiUiston v. 
Smith, 3 Kerr, 443, which was an action 
for slander by charging the defendant 
with larceny, the defendant, in mitiga- 
tion of damages, offered evidence of the 
plaintiff's general bad character; which 
the judge at Nisi Prius rejected ; and the 
court held the rejection i^-oper; observ- 
ing that, had the evidence been to the 
plaintiff's general characterybr honesty, it 
might have been admitted. [See post, 
vol. ii. §§ 424-426, and vol. iii. §§ 25-27, 
for other cases illustrative, and also that 
plaintiff' can only prove his good charac- 
ter when it is attacked.] 

1 Swift's Evid. 140; Ross j^. Lapham, 
14 Mass. 275; Douglass v. Tousey, 2 
Wend. 352; Andrews v. Vanduzer, 11 
Johns. 38; Root v. King, 7 Cowen, 613; 
Newsam v. Carr, 2 Stark. 69 ; Sawyer v. 
Eifert, 2 Nott & McCord, 911 [Bruce v. 
Priest, 5 Allen (Mass.), 100; Stone v. 
Varney, 7 Mete. 86; Leonard r. Allen, 
11 Cush. 241, 245; Watson v. Moore, 2 
Id. 133; Orcutt v. Ranney, 10 Id. 183. 
The best evidence of good character 
seems to be that the witness, if thor- 
oughly conversant with the history of 
the party for years, never heard any 
question raised in regard to it. Gaudolfo 
V. State, N. s. 11 Ohio, 114. To prove 
the bad character of a horse, particular 
vicious acts may be shown. Whittier v. 
Franklin, 46 N. H. 23; contra as to the 
character of a man. Reg. v. Rowton, 11 
Jur. N. s. 325. Nor can the qualities of 
value of a horse be shown by reputation. 
Heath v. West, 20 N. H. 191.] 



76 LAW OF EVIDENCE. [PAET H. 



CHAPTER 11. 

OF THE SUBSTANCE OF THE ISSUE. 

§ 56. Sufficiency of evidence. A second rule wliicli governs 
in the production of evidence is, that it is sufficient, if the sub- 
stance of the issue be proved. In the application of this rule, a 
distinction is made between allegations of matter of substance^ 
and allegations of matter of essential description. The former 
may he substantially proved ; but the latter must be proved with 
a degree of strictness, extending in some cases even to literal pre- 
cision. No allegation, descriptive of the identity of that which 
is legally essential to the claim or charge, can ever be rejected.^ 
Thus in an action of malicious prosecution, the plaintiff alleges 
that he was acquitted of the charge on a certain day ; here the 
substance of the allegation is the acquittal, and it is sufficient, if 
this fact be proved on any day, the time not being material. But 
if the allegation be, that the defendant drew a bill of exchange of 
a certain date and tenor, here every allegation, even to the pre- 
cise day of the date, is descriptive of the bill, and essential to its 
identity, and must be literally proved.^ So also, as we have 
already seen, in justifying the taking of cattle damage feasant, 
because it was upon the close of the defendant, the allegation of a 
general freehold title is sufficient ; but if the party states, that he 
was seised of the close in fee, and it be traversed, the precise 
estate, which he has set forth, becomes an essentially descriptive 
allegation, and must be proved as alleged. In tliis case the essen- 
tial and non-essential parts of the statement are so connected as to 
be incapable of separation, and therefore both are alike material.^ 

1 Stark. Evid. 87.3 ; Purcell v. Macna- taken by Lord Ellenborough, in Purcell ?'. 
mara, 9 East, 160; Stoddard v. Palmer, 3 Macnamara, and recognized in Stoddard 
B. & C. 4 ; Turner i-. Eylcs, 3 B. & P. v. Palmer, 3 B. & C. 4, will, on closer ex- 
466; Ferguson v. Ilarwood, 7 Cranch, amination, result merely in this, tliat mat- 
408, 413 [pout, vol. ii. § 2-111. ters of description are matters of sub- 

2 3 B. & C. 4, 6; Glassford on Evid. stance, when they go to the identity of 
309. any tiling material to the action. Thus 

8 Stephen on Pleading, 261, 262, 419; tlie rule will stand, as originally stated, 

Turner v. Eyles, 3 B. & P. 450; 2 Saund. that the substance, and this alone, must 

206 a, n. 22; Sir Francis Leko's case, be i)roved. 
Dyer, 364 b. Perhaps the distinction 



CHAP, n.] THE SUBSTAITCE OF THE ISSUE. 



77 



§ 57. Matter of description. Whether an allegation is or is not 
so essentially descriptive, is a point to be determined by the judge 
in the case before him ; and it depends so much on the particular 
circumstances, that it is difficult to lay down any precise rules by 
wliich it can in all cases be determined. It may depend, in the 
first place, on the nature of the averment itself, and the subject 
to which it is applied. But secondly, some averments the law 
pronounces formal which otherwise would, on general principles, 
be descriptive. And thirdly, the question, whether others are 
descriptive or not, will often depend on the technical manner in 
which they are framed. 

§ 58. Same subject. In the first place, it may be observed that 
any allegation which narrows and limits that which is essential 
is necessarily descriptive. Thus, in contracts, libels in writing, 
and written instruments in general, every part operates by way of 
description of the whole. In these cases, therefore, allegations 
of names, sums, magnitudes, dates, durations, terms, an^ the like, 
being essential to the identity of the writing set forth, must, in 
general, be precisely proved.^ Nor is it material whether the 
action be founded in contract or in tort ; for in either case, if a 
contract be set forth, every allegation is descriptive. Thus, in an 
action on the case for deceit in the sale of lambs by two defend- 
ants, jointly, proof of sale and warranty by one only, as his sepa- 
rate property, was held to be a fatal variance.^ So also, if the 
contract described be absolute, but the contract proved be condi- 
tional, or in the alternative, it is fatal.^ The consideration is 
equally descriptive and material, and must be strictly proved as 
alleged.^ Prescriptions, also, being founded in grants presumed 
to be lost from lapse of time, must be strictly proved as laid ; for 
every allegation, as it is supposed to set forth that which was 
originally contaiijed in a deed, is of course descriptive of the 
instrument, and essential to the identity of the grant.^ An alle- 

1 Bristow V. Wright, Doug. 665, 667 ; lies v. Fettyplace, 7 Mass. .325 ; Robbins 
Churchill j;.Wilkins,lT.R. 447 ;1 Stark, v. Otis, 1 Pick. 368; Harris v. Eaynor, 
Evid .386 388 8 Pick. 541 ; White v. Wilson, 2 Bos. & 

2 Weal'i.'. Iving e( a?. 12 East, 452. Pul. 116; Whitaker r. Smith, 4 Pick. 

3 Penny v. Porter, 2 East, 2 ; Lopez v. 83 ; Lower v. Winters, 7 Cowen, 263 ; 
De Tastet, 1 B. & B. 5-38; Higgins v. Alexander r. Harris, 4 Cranch, 299. 
Dixon, 10 Jur. 376; Hilt v. Campbell, 6 * Sallow v. Beaumont, 2 B. & Aid. 765; 
Greenl. 109 ; Stone v. Knowlton, 3 Wend. Robertson v. Lynch, 18 Johns. 451 [posty 
374. See also Saxton v. Johns6n, 10 §68]. . m t, ic^ 
Johns. .581 ; Snell v. Moses, 1 Johns. 96 ; ^ Morewood v. Wood, 4 T. K. 157 ; 
Crawford v. Morrell, 8 Johns. 153 ; Bay- Rogers v. Allen, 1 Campb. 309, 314, 315, 



78 LAW OF EVIDENCE. [PAET U. 

gation of the character in which the plaintiff sues, or of his title 
to damages, thongh sometimes superfluous, is generally descrip- 
tive in its nature, and requires proof.^ 

§ 59. Formal averments. Secondly, as to those averments which 
the law pronounces formal, though, on general principles, they 
seem to be descriptive and essential, these are rather to be re- 
garded as exceptions to the rule already stated, and are allowed 
for the sake of convenience. Therefore, though it is the nature 
of a traverse to deny the allegation in the manner and form in 
which it is made, and, consequently, to put the party to prove it 
to be true in the manner and form, as well as in general effect ;2 
yet where the issue goes to the point of the action, these words, 
onodo et forma, are but words of form.^ Thus, in trover, for 
example, the allegation that the plaintiff lost the goods and that 
the defendant found them is regarded as purely formal, requiring 
no proof; for the gist of the action is the conversion. So, in 
indictments for homicide, though the death is alleged to have 
been caused by a particular instrument, this averment is but 
formal ; and it is sufficient if the manner of death agree in sub- 
stance with that which is charged, though the instrument be dif- 
ferent ; as, if a wound alleged to have been given with a sword 
be proved to have been inflicted with an axe.* But, where the 
traverse is of a collateral point in pleading, there the words, mode 
et formd, go to the substance of the issue, and are descriptive, 
and strict proof is required ; as, if a feoffment is alleged by deed, 
which is traversed modo et formd, evidence of a feoffment with- 
out deed will not suffice.^ Yet, if in issues upon a collateral 
point, where the affirmative is on the defendant, partial and 
defective proof on his part should show that the plaintiff had no 
cause of action, as clearly as strict and full proof would do, it is 
sufficient.*' 

§ 60. If descriptive, must be proved. Thirdly, as to those aver- 

note (a). But proof of a more ample ' Trials per pa/s, 308 (0th ed.); Co. 

right tiian is nlicf^od will be ri-fjarded as Lit. 281 b. 

mere redundancy. Johnson v. Tiioroush- ■• 2 Russell on Crimes, 711 ; 1 East, P. 

good, Hob. (34; Busiiwood v. Pond, Cro. C. 341. 

El. 722; Bailiffs of Tewksbury I'. Brick- ^ Bull. N. P. 301; Co. Lit. 281 b. 

nit, 1 Taunt. 142; Burges v. Steer, J^K.W Iicthcr virtiitecujus, in a sheriff's plea in 

Show. 347 ; s. c. 4 Mod. H'.t [post, § 711^KHfctification, is traversable, and in what 

1 1 Stark. Evid. 3!)0 ; Moises v. Th(fl|^^Kes,is discussed in Lucas v. Nockells, 7 
ton, 8 T. K. 303, 308 ; Berryman v. wSKHRTigh, n. 8. 140. 

4 T. R. 300. 6 Ibid. ; 2 Stark. Ev. 394. 

2 Stephen on Pleading, 213. 



CHAP, n.] THE SUBSTANCE OF THE ISSUE. 79 

ments, whose character, as being descriptive or not, depends on 
the trimmer in ivhich they are stated. Every allegation, essential 
to the issue, must, as we have seen, be proved, in whatever form 
it be stated ; and things immaterial in their nature to the ques- 
tion at issue may be omitted in the proof, though alleged with 
the utmost explicitness and formality. There is, however, a 
middle class of circumstances, not essential in their nature, which 
may become so by being inseparably connected with the essential 
allegations. These must be proved as laid, unless they are stated 
under a videlicet ; the office of which is to mark, that the party 
does not undertake to prove the precise circumstances alleged ; 
and in such cases he is ordinarily not holden to prove them.^ 
Thus in a declaration upon a bill of exchange, the date is in its 
nature essential to the identity of the bill, and must be precisely 
proved, though the form of allegation were, " of a certain date, 
to wit," such a date. On the other hand, in the case before cited, 
of an action for maliciously prosecuting the plaintiff for a crime 
whereof he was acquitted on a certain day, the time of acquittal 
is not essential to the charg^fand need not be proved, though it 
be directly and expressly alleged.^ But where, in an action for 
breach of warranty upon the sale of personal chattels, the plain- 
tiff set forth the price paid for the goods, without a videlicet^ he 
was held bound to prove the exact sum alleged, it being rendered 
material by the form of allegation ; ^ though, had the averment 
been that the sale was for a valuable consideration, to tvit, for so 
much, it would have been otherwise. A videlicet will not avoid 
a variance, or dispense with exact proof, in an allegation of mate- 
rial matter ; nor will the omission of it always create the necessity 
of proving, precisely as stated, matter which would not other- 
wise require exact proof. But a party may, in certain cases, 
impose upon himself the necessity of proving precisely what is 
stated, if not stated under a videlicet.^ 

1 Stephen on Pleading, 309 ; 1 Chitty Pleading, 419, 420; 1 Chitty on PI. 340 
on PI. 261, 262, 348 (6th ed. ) ; Stukeley v. (6th ed.). 

Butler, Hob. 168, 172 ; 2 Saund. 201, note * Crispin v. Williamson, 8 Taunt. 107, 

(1) ; Gleason v. McVickar, 7 Cowen, 42. 112 ; Attorney-General v. Jeffreys, M'Cl. 

2 Supra, § 56; Pureed v. Macnamara, 277; 2 B. & C. 3, 4; 1 Chitty on Plead. 
9 East, 160 ; Gwinnett v. Phdlips, 3 T. R. 348 a ; Grimwood v. Barrett, 6 T. R. 460, 
643 ; Vail v. Lewis, 4 Johns. 450. 46.3 ; Bristow v. Wright, Doug. 667, 66g. 

3 Durston v. Tuthan, cited in 3 T. R. These terms, " immaterial," and " iniper- 
67 ; Symmons v. Knox, 3 T. R. 65; Arn- tinent," though formerly applied to two 
fieid V. Bates, 3 M. & S. 173 ; Sir Francis classes of averments, are now treated as 
Leke's case, Dyer, 364 6; Stephen on synonymous (3 D. & R. 209); the more 



80 



LAT7 OF EVIDENCE. 



[PAP.T n. 



§ 61. Time, place, quantity, value, &c. But, ill general, the alle- 
gations of time^ jt^Zace, quantity, quality^ and value, when not 
descriptive of the identity of the subject of the action, will be 
found immaterial, and need not be proved strictly as alleged. 
Thus, in trespass to the person, the material fact is the assault and 
battery ; the time and place not being material, unless made so by 
the nature of the justification, and the manner of pleading. And, 
in an action on a policy of insurance, the material allegation is the 
loss ; but Avhether total or partial is not material ; and if the 
former be alleged, proof of the latter is sufficient. So in assump- 
sit, an allegation that a bill of exchange was made on a certain 
day is not descriptive, and therefore strict proof, according to 
the precise day laid, is not necessary; though, if it were stated 
that the bill lore date on that day, it would be otherwise. ^ Thus, 
also, proof of cutting the precise number of trees alleged to have 
been cut, in trespass ; or, of the exact amount of rent alleged to 
be in arrear in replevin ; or the precise value of the goods taken, 
in trespass or trover, is not necessary.^ Neither is matter of 
aggravation, namely, that which only tends to increase the 
damages, and does not concern the right of action itself, of the 
substance of the issue. But, if the matter, alleged by Avay of 
aggravation, is essential to the support of- the charge or claim, it 
must be proved as laid. 

§ 62. Place in local actions. But in local actions the allegation 



accurate distinction being between these, 
and unncc.essiirij allegations. Imniatfrial 
or impertinent averments are those wliicli 
need neither be alleged nor proved if al- 
leged. Unnecessary averments consist of 
matters which need not be alleged ; but, 
being alleged, must be proved. Thus, in 
an action of assumpsit u])on a warranty 
on the sale of goods, an allegation of de- 
ceit on the part of the seller is imperti- 
nent, and need not be proved. William- 
son V. Allison, 2 East, 41G; Panton v. 
Holland, 17 Johns. ('2 ; Twiss v. Baldwin, 
Conn. 2!'2. So, where the action was 
for an injury to the plaintiff's reversion- 
ary interest in land, and it was alleged 
that the close, at the time of the injury, 
was, and " continually from thence 
hitlierto liath been, ami still is," in the 
possession of one J. V., this latter part of 
the averment was held supertUunis, and 
not necessary to he proved. Vowels v. 
Miller, 3 Taunt. 137. But if, in an action 
by a lessor against his tenant, for negli- 



gently keeping his fire, a demise for acjjen 
years be alleged, and the proof be of a lease 
at will only, it will be a fatal variance ; 
for though it would have sufficed to have 
alleged tlie tenancy generally, yet having 
uimecessarily qualified it, by stating the 
precise term, it must be proved as laid. 
Cudlij) 7\ Bundle, Carth. 202. So, in 
debt against an officer for extorting ille- 
gal fees on a jicri facias, though it is suf- 
ficient to allege the issuing of the writ of 
Jieri facias, yet if the plaintiff also un- 
necessarily allege the judgment on which 
it was founded, he must prove it, having 
made it descrijUiveof the ])rincii>al thing. 
Savage v. Smith, 2 W. Bl. IKU ; Bristow 
V. Wright, Doug. (J08 ; (Jouhl's PI. KK)- 
165; Draper v. Garratt, 2 B. & C. 2. 
[See also post, § 05.] 

1 Gardiner i'. Croadales, 2 Burr. 904 ; 
Coxon !'. Lv(in, 2 Campl). :507, n. 

2 Harrison r. Barn by, 5 T. B. 248 ; Co. 
Lit. 282 a; Stephen on Pleading. ^18; 
Hutchins v. Adams, 3 Greenleaf, 174. 



CHAP. II.] THE SUBSTANCE OF THE ISSUE. 81 

of place is material, and must strictly be proved, if put in issue. 
In real actions, also, the statement of quality, as arable or pasture 
land, is generally descriptive, if not controlled by some other and 
more specific designation. And in these actions, as well as in 
those for injuries to real property, the abuttals of the close in 
question must be proved as laid ; for if one may be rejected, all 
may be equally disregarded, and the identity of the subject be 
lost.i 

§ 63. Variance. It being necessary to prove the substance of 
the issue, it follows that any departure from the substance, in 
the evidence adduced, must be fatal ; constituting what is termed 
in the law a variance. This may be defined to be a disagreement 
between the allegation and the proof, in some matter wMch, in 
point of law, is essential to the charge or claim.^ It is the legal, 
and not the natural, identity which is regarded ; consisting of 
those particulars only, which are in their nature essential to the 
action, or to the justification, or have become so by being insepa- 
rably connected, by the mode of statement, with that which is 
essential ; of which an example has already been given,^ in the 
allegation of an estate in fee, when a general averment of free 
hold would suffice. It is necessary, therefore, in these cases, first 
to ascertain what are the essential elements of the legal proposi- 
tion in controA'ersy, taking care to include all which is indis- 
pensable to show the right of the plaintiff, or party affirming. 
The rule is, that whatever cannot be stricken out without getting 
rid of a part essential to the cause of action, must be retained, 
and of course must be proved, even though it be .described with 
unnecessary particularity.* The defendant is entitled to the 
benefit of this rule, to protect himself by the verdict and judg- 
ment, if the same rights should come again in controversy. The 
rule, as before remarked, does not generally apply to allegations 
of number, magnitude, quantity, value, time, sums of money, and 
the like, provided the proof in regard to these is sufficient to con- 
stitute the offence charged, or to substantiate the claim set up ; 
except in those cases where they operate by way of limitation, or 

1 Mersev & Irwoll Nav. Co. v. Douglas, 2 Stephen on PI. 107, 108. 

2 East, 497, 502 ; Bull. N. P. 89 ; Vowels 3 Supra, § 51-56. 

V. Miller, 3 Taunt. 139, per Lawrence, J. ; * Bristow v. Wright, Doug. 668 ; Pep- 

■Regina v. Crannge, 1 Salk. 385. [See pin v. Solomons, 5 T. R. 490; William- 

post, vol. ii. § 618 a.] son v. Allison, 2 East, 446, 452. 

VOL. I. 6 



82 



LAW OF EVIDENCE. 



[part n. 



description of other matters, in themselves essential to the offence 
or claim. 1 

§ 64. Variance. A few examples will suffice to illustrate this 
subject. Thus, in tort, for removing earth from the defendant's 
land, whereby the foundation of the plaintiff's house was injured, 
the allegation of bad intent in the defendant is not necessary to 
be proved, for the cause of action is perfect, independent of '.he 
intention.2 So, in trespass, for driving against the plaintiff's cart, 
the allegation that he was in the cart need not be proved.^ But, 
if the allegation contains matter of description, and is not proved 
as laid, it is a variance, and is fatal. Thus, in an action for mali- 
cious prosecution of the plaintiff, upon a charge of felony, before 
Baron Waterpark of Waterfork^ proof of such a prosecution before 
Baron Waterpark of Waterpark was held to be fatally variant 
from the declaration.* So, in an action of tort founded on a con- 
tract, every particular of the contract is descriptive, and a vari- 
ance in the proof is fatal. As, in an action on the case for deceit, 
in a contract of sale, made by the two defendants, proof of a sale 
by one of them only, as his separate property, was held insuffi- 
cient ; for the joint contract of sale was the foundation of the 
joint warranty laid in the declaration, and essential to its legal 
existence and validity.^ 

§ Q^i. In criminal cases. In criminal prosecutions^ it has been 
thought that greater strictness of proof was required than in civil 
cases, and that the defendant might be allowed to take advantage 



1 Supra, § 01 ; Rickets v. Salwev, 2 B. 
& Aid. :363 ; May v. Brown, 3 B. & C. 113, 
122. It has been said that allegations, 
which are merely iiidtters nf indncement , do 
not require such strict proof as those 
wliicli are |)recisely i)at in issue l)et\vecu 
the parties. Smith v. Tnylor, 1 New liep. 
210, y)er CJiiambre.J. But this distinction, 
as Mr. vStarkie justly observes, between 
tiiat whicii is the pist of tiie action nnd 
that whicli is inducement, is not always 
clear in principle. 1 Stark. Evid. 3!)1, 
n. (b) ; ?5 Stark. F,vid. liGl, n. (x) Met- 
calf's ed. Certainly that whicli mjiy be 
traversed, must be proved, if it is" not 
admitted ; and some facts, even thouph 
Plated in the form of inducement, niaj- he 
traver.'sed, l)e(;ause they are material ; as, 
for example, in acMion for slander, ujxui a 
chnrf(e for perjury, wiiere the plaintid' al- 
leged, by way of inducement, that he was 
sworn before tiie Lord Mayor. Stephen on 
rieading, 208. The question whether au 



allegation must be proved, .or not, turns 
upon its materiality to the case, and not 
upon tlie form in whicii it is stated, or its 
place in the declaration. In general, every 
allegation in an inducement, whicii is 
material, and not inijjcrtinent, and foreign 
to the case, and which consequently can- 
not be rejected as sur])lii.sage, must be 
proved as alleged. 1 Chitty on PI. 262, 
320. It is true that those matters which 
need not be alU'ged witii ])articu]arity, 
neeil not be proveii with jjarticularity, 
but still, all allegations, if material, must 
be proved substantially as a/li'i/i'd. 

=^ Panton v. Holland, 17 Johns. 92; 
Twiss V. Baldwin, 9 Conn. 201. 

*• Howard v. I'eete, Chitty, 315. 

* Walters v. Mace, 2 B. & Aid. 
756. 

" Weall V. King et ah, 12 East, 452; 
Lopes V. De Tastet, 1 Ji. & B. 5;;8. [See 
Ashley v. Wolcott, 11 Cush. H)2.J 



CHAP, n.] THE SUBSTAISTCE OF THE ISSTJE. 83 

of nicer exceptions.^ But whatever indulgence the humanity and 
tenderness of judges may have allowed in practice, in favor of life 
or liberty, the better opinion seems to be that the rules of evidence 
are in both cases the same.^ If the averment is divisible, and 
enough is proved to constitute the offence charged, it is no vari- 
ance, though the remaining allegations are not proved. Thus, an 
indictment for embezzling two bank-notes of equal value is sup- 
ported by proof of the embezzlement of one only.^ And in an 
indictment for obtaining money upon several false pretences, it is 
Bufificient to prove any material portion of them.* But where a 
person or thing, necessary to be mentioned in an indictment, is 
described with unnecessary particidarity, all the circumstances of 
the description must be proved ; for they are all made essential 
to the identity. Thus, in an indictment for stealing a black horse, 
the animal is necessarily mentioned, but the color need not be 
stated ; yet if it is stated, it is made descriptive of the particular 
animal stolen, and a variance in the proof of the color is fatal. ^ 
So, in an indictment for stealing a bank-note, though it would be 
sufficient to describe it generally as a bank-note of such a denom- 
ination or value, yet, if the name of the officer who signed it be 
also stated, it must be strictly proved.^ So, also, in an indictment 
for murder, malicious shooting, or other offence to the person, or 
for an offence against the habitation, or goods, the name of the 
person who was the subject of the crime, and of the owner of the 
house or goods, are material to be proved as alleged.'^ But where 

1 Beech's case, 1 Leach's Cas. 158; crowns; it was held, that it was not sup- 
United States V. Porter, 3 Day, 283, 286. ported by evidence of stealing a sum of 

2 Roscoe's Crim. Evid. 73; 1 Deacon's vioney consisting of some of the coins 
Dig. Crim. Law, 459, 460. And see 2 mentioned in the indictment, witiiout 
East, P. C. 785, 1021 ; 1 Phil. Evid. 506 ; proof of some one or more of the specific 
Rex V. Watson, 2 Stark. 116, 155, per coins charged to have been stolen. Re- 
Abbott, J.; Lord Melville's case, 29 How- gina v. Bond, 1 Den. Cr. Cas. 517; 14 
ell's St. Tr. 370 ; 2 Rnssell on Crimes, Jur. 390. [The value of several articles, 
588; United States v. Britton, 2 Mason, all of the same kind, may be alleged col- 
464, 4G8. [Kline v. Baker, 106 Mass. 61. lectively, if all are proved. Com. v. 
And see also post, vol. ii. § 426.] Falvey, 108 Mass. 304. But, if a part 

3 Carson's case, Russ. & Ry. 303 ; only are proved, the collective value is 
Eurneaux's case. Id. 335; Tyer's case, insufficient, as those not proved may 
Id. 402. have constituted the entire value. Com. 

i Hill's case, Russ. & Rv. 190. v. Lavery, 101 Mass. 207.] 

5 1 Stark. Evid. 374. [State v. Jack- ' Clark's case, Russ. & Ry. 358 ; 
son, SO Maine, 29 ; Rex v. Darley, 1 Moody White's case, 1 Leach's Cas. 286 ; Jenks's 
C. C. 303.] case, 2 East, P. C. 514; Durore's case, 1 

6 Craven's case, Russ. & Ry. 14. So, Leach's Cas. 390. But a mistake in spell- 
where the charge in an indictment was of ing the name is no variance, if it be idem 
stealing 70 pieces of the current coin sonans with the name proved. Williams 
called sovereigns, and 140 pieces called v. Ogle, 2 Stra. 889 ; Foster's case, Russ. & 
half sovereigns, and 500 pieces called Ry. 412 ; Tannet's case, Id. 351; Bingham 



84 LAW OF EVIDENCE. [PART U. 

the time, place, person, or other circumstances, are not descriptive 
of the fact or degree of the crime, nor material to the jurisdiction, 
a discrepancy between the allegation and the proof is not a vari- 
ance. Such are statements of the house or field where a robbery 
was committed, the time of the day, the day of the term in which 
a false answer in chancery was filed, and the like.^ In an indict- 
ment for murder, the substance of the charge is that the prisoner 
feloniously killed the deceased by means of shooting, poisoning, 
cutting, blows, or bruises, or the like ; it is, therefore, sufficient, 
if the proof agree with the allegation in its substance and general 
character without precise conformity in every particular. In 
other words, an indictment describing a thing by its generic term 
is supported by proof of a species which is clearly comprehended 
within such description. Thus, if the charge be of poisoning by 
a certain drug, and the proof be of poisoning by another drug ; 
or the charge be of felonious assault with a staff, and the proof 
be of such assault with a stone ; or the charge be of a wound with 
a sword, and the proof be of a wound with an axe ; yet the charge 
is substantially proved, and there is no variance.^ But where 
the matter, whether introductory or otherwise, is descriptive, it 
must be proved as laid, or the variance will be fatal. As, in an 
indictment for perjury in open court, the term of the court must 
be truly stated and strictly proved.^ So, in an indictment for 
perjury before a select committee of the House of Commons, in a 
contested election, it was stated that an election was holden by 
virtue of a precept duly issued to the bailiff of the borough of 
New Malton, and that A and B were returned to serve as mem- 
bers for the said borough of New Malton ; but the writ appeared 
to be directed to the bailiff of Malton. Lord Ellenboroudi held 

o 

V. Dickie, 5 Taunt. 814. So, if one be in- stealing of any sex or variety of that ani- 

dictt'd for an assault upon A. B., a deputy- mal ; for the term is nomen generdlissimum. 

Blieriff, and in the officer's commission he M'Cully's case, 2 Lew. C. C. 272 ; Hegina 

is styled A. B. junior, it is no variance v. Spicer, 1 Dennis. C. C. 82. So, if tlie 

if the person is proved to be the same, cliarge be of deatii by sullocation, by the 

CDMimouwealtii i;. Ueckley, 3 Metcalf, hand over the mouth, and tlie proof be 

3-iO. that respiration was stopped, though by 

MVardle's case, 2 East, P. C. 785; some other violent mode of strangulation, 

Pye's case, lb. ; Johnstone's case. Id. 786 ; it is sufficient. Ke.\ v. Waters, 7 C. & P. 

Minton's case, Id. 1021 ; Rex v. Waller, 2 250 [Commonwealth v. Webster, 5 Cush. 

Stark. Evid. 623; Kex v. Hucks, 1 Stark. 321. 323). 
621. 3 Where the term is designated by the 

■2 1 East, P. C. 341; Martin's case, 5 day of the montli, as in the Circuit Courts 

Car. & P. 128; Culkin's case. Id. 121; of the United States, the precise day is 

supra, § 58. An indictment for stealing material. United States v. McXeal, 1 

" a sheep " is supported by proof of the Gall. 387. 



CHAP, n.] TELE SUBSTAIfCE OF THE ISSUE. 85 

this not matter of description ; and the precept having been actu- 
ally issued to the bailiff of the borough of New Malton, it was 
sufficient. But the return itself was deemed descriptive ; and the 
proof being that the members were in fact returned as members 
of the borough of Malton, it was adjudged a fatal variance. ^ So, 
a written contract, when set out in an indictment, must be strictly 
proved.2 

§ 6Q. In contracts. Thus, also, in actions upon contract, if any 
part of the contract proved should vary materially from that 
which is stated in the pleadings, it will be fatal ; for a contract is 
an entire thing, and indivisible. It will not be necessary to state 
all the parts of a contract which consists of several distinct and 
collateral provisions ; the ffravameri is, that a certain act which 
the defendant engaged to do has not been done ; and the legal 
proposition to be maintained is, that, for such a consideration, he 
became bound to do such an act, including the time, manner, and 
other circumstances of its performance. The entire consideration 
must be stated, and the entire act to be done, in virtue of such 
consideration, together with the time, manner, and circumstances ; 
and with all the parts of the proposition, as thus stated, the proof 
must agree.^ If the allegation be of an absolute contract, and the 
proof be of a contract in the alternative, at the option of the de- 
fendant ; or a promise be stated to deliver merchantable goods, 
and the proof be of a promise to deliver goods of a second quality ; 
or the contract stated be to pay or perform in a reasonable time, 
and the proof be to pay or perform on a day certain, or on the 
happening of a certain event ; or the consideration stated be one 
horse, bought by the plaintiff of the defendant, and the proof be 
of two horses ; in these and the like cases, the variance will be 
fatal.4 

1 Rex V. Leefe, 2 Campb. 134, 140. tion set forth an executory agreement 

2 2 East, P. C. 977, 978, 981, 982 ; of the defendant to do certain work for a 
Commonwealth v. Parmenter, 5 Pick, certain sum, and within a certain time, on 
279; The People v. Franklin, 3 Johns, materials to be furnished by the plaintiff, 
299. and alleged that the plaintiff did furnish 

3 Clarke v. Gray, 6 East, 564, 567, 568; the materials to the defendant in season 
Gwinnett v. Phillips, 3 T. R. 643, 646; for him to complete the stipulated work 
Thornton v. Jones, 2 Marsh. 287 ; Parker within the stipulated lime, and the proof 
V. Palmer, 4 B. & A. 387; Swallow v. was that the plaintiff had not performed 
Beaumont, 2 B. & A. 765. in full his agreement, but that he was ex- 

* Penny v. Porter, 2 East, 2 ; Bristow cused from the performance thereof Ly 

V. Wright, 2 Doug. 665 ; Hilt v. Campbell, the waiver of the defendant ; the variance 

6Greenl. 109; Symondsw. Carr, 1 Campb. was held fatal. Colt v. Miller, 10 Cush. 

861 ; King v. Robinson, Cro. El. 79. See 49, 51 ; see also Metzner v Bolton, 24 Eng. 

post, vol. ii. § 11 d. [Where the declara- Law & Eq. 637. And where the declara- 



86 



LAW OF EVIDENCE. 



[PAET n. 



§ 67. Redundancy of allegation, sind of proof There is, however, 
a material distinction to be observed between the redundancy in 
the allegation, and redundancy only in the proof. In the former 
case, a variance between the allegations and the proof will be 
fatal, if the redundant allegations are descriptive of that which is 
essential. But in the latter case, redundancy cannot vitiate, 
merely because more is proved than is alleged ; unless the matter 
superfluously proved goes to contradict some essential part of the 
allegation. Thus, if the allegation were that, in consideration of 
<£100, the defendant promised to go to Rome, and also to deliver 
a certain horse to the plaintiff, and the plaintiff should fail in 
j)roving the latter branch of the promise, the variance would be 
fatal, though he sought to recover for the breach of the former 
only, and the latter allegation was unnecessary. But, if he had 
alleged only the former branch of the promise, the proof of the 
latter along with it would be immaterial. In the first case, he 
described an undertaking which he has not proved ; but in the 
latter, he has merely alleged one promise, and proved that, and 
also another.! 

§ 68. Consideration. But where the subject is entire, as, for 
example, the consideration of a contract,^ a variance in the proof, 
as we have just seen, shows the allegation to be defective, and is, 
therefore, material. Thus, if it were alleged that the defendant 



tion alleged an authority to one G. W., 
trading as G. W. & Co., to sell goods as 
the goods of G. W.,and the proof was of 
an authority to G. W. to sell the goods 
as the goods of G. W. & Co., the variance 
was held fatal. Addington v. Magan, 2 
Eng. Law & Eq. 327. A declaration set- 
ting out a note payable " without defal- 
cation or discount" is not supported by 
proof of a note payable " without de- 
falcation." Addis V. Van Buskirk, 4 
Zahr. 218. AViiere a note was described 
in tlie declaration as payable "on or 
before " a certain day, and the proof 
was that it was payable "on" the day 
named, it was held no variance. Morton 
('. Teiiny, 16 111. 404; see also Walker v. 
Welch, 14 111. 277. The declaration was 
on a i)roinise to pay money on demand ; 
the proof was a promise to pay in com- 
modities ; and it was held to be a variance. 
Titus V. Ash, 4 Foster, N. II. .310. So a 
declaration on a note not alleged to be 
upon interest is not sustained by proof of 
a note in other respects similar, but draw- 
ing interest. Gragg v. Frye, 32 Maine, 
283. There can be no doubt of the ad- 



missibility of a written contract in evi- 
dence to prove the contract declared on, 
though the declaration does not aver that 
it was in writing. It is generally unneces- 
sary in declaring on a simple contract in 
writing to allege it to be so. This allega- 
tion is not required even in declarations 
on contracts that are within the statute 
of frauds. Fiedler v. Smith, Cush. 340 ; 
see Irvine i;. Stone, lb. 508.] 

^ Stark. Evid. 401. Where tlie agree- 
ment, as in this case, contains several dis- 
tinct promises, and for the breach of one 
only the action is brought, the conse- 
quences of a variance may be avoided by 
alleging the promise, as made irtter ahd. 
And no good reason, in principle, is per- 
ceived, why the case mentioned in the 
following section might not be treated in 
asimilar manner ; but the authorities are 
otherwise. In the example given in the 
text, the allegation is supposed to import 
that the undertaking consisted of neither 
more nor less than is alleged. 

2 Swallow V. Beaumont, 2 B. & A. 
765; White v. Wilson, 2 B. & P. 116; 
supra, § 58. 



CHAP. II.] THE SUBSTANCE OF THE ISSUE. 87 

promised to i^ay XlOO, in consideration of the plaintiff's going to 
Rome, and also delivering a horse to the defendant, an omission to 
prove the whole consideration alleged would be fatal. And if the 
consideration had been alleged to consist of the going to Rome 
only, yet if the agreement to deliver the horse were also proved, 
as forming part of the consideration, it would be equally fatal ; 
the entire thing alleged, and the entire tiling proved, not being 
identical.^ Upon the same principle, if the consideration alleged 
be a contract of the plaintiff to build a ship, and the proof be of 
one to finish a ship partly built ; ^ or the consideration alleged be 
the delivery of pine timber, and the proof be of spruce timber ; ^ 
or the consideration alleged be, that, the plaintiff would indorse 
a note, and the proof be of a promise in consideration that he had 
indorsed a note ; * the variance is equally fatal. But though no 
part of a valid consideration may be safely omitted, yet that which 
is merely frivolous need not be stated ; ^ and, if stated, need not 
be proved ; for the court will give the same construction to the 
declaration as to the contract itself, rejecting that which is non- 
sensical or repugnant.^ 

§ 69. Deeds. In the case of deeds, the same general principles 
are applied. If the deed is declared upon, every part stated in 
the pleadings, as descriptive of the deed, must be exactly proved, or 
it will be a variance ; and this, whether the parts set out at length 
were necessary to be stated or not.'' If a qualified covenant be 
set out in the declaration as a general covenant, omitting the 
exception or limitation, the variance between the allegation and 
the deed will be fatal. If the condition, proviso, or limitation 
affects the original cause of action itself, it constitutes an essential 
element in the original proposition to be maintained by the plain- 
tiff ; and, therefore, must be stated, and proved as laid; but, if it 

11 Stark. Evid. 401 ; Lansing i>. Mc- signment of a certain policy," &c., and the 

Killip, 3 Caines, 286; Stones. Kuowlton, proof was tliat " tlie policy liaving been 

3 Wend. 374. assigned to us, in consideration thereof, 

2 Smith V. Barker, 3 Day, 312. we promise," &c., it was held that there 

8 Robbins v. Otis, 1 Pick. 368. was a A'ariance. New Hampshire Mutual, 

* Bulkley v. Landon, 2 Conn. 404. [So &c., Ins. Co. v. Hunt, 10 Foster, 219.] 

if t! e allegation be of an agreement to ^ Brooks v. Lowrie, 1 Nott & McCord, 

obtain insurance on property, " in consid- 342. 

eralion of a reasonable commission," and the ^ Ferguson v. Harwood, 8 Cranch, 

proof be of an agreement to obtain the in- 408, 414. 

surance in consideration of a, dcjinite sum, l Bowditch v. IVIawIey, 2 Campb. 195; 

the variance is fatal. Cleaves v. Lord, 3 Dundas v. Ld. Weymouth, Cowp. 665 ; 

Gray, 66, 71. And where the declaration supra, § 55; Ferguson v. Harwood, 7 

alleged that the defendant, " in considera- Cranch, 408, 413 ; Sheehy v. Mandevilie. 

tion that said, &c., had accepted the as- Id. 208, 217. 



88 



LAW OF EVIDENCE. 



[P.VJvT n. 



merely affects the amount of damages to be recoYered, or the 
liability of the defendant as affected by circumstances occurring 
after the cause of action, it need not be alleged by the plaintiff, 
but properly comes out in the defence.^ And where the deed is 
not described according to its tenor, but according to its legal 
effect, if the deed agrees in legal effect with the allegation, any 
verbal discrepancy is not a variance. As, in covenant against a 
tenant for not repairing, the lease being stated to have been made 
by the plaintiff, and the proof being of a lease by the plaintiff and 
his wife, she having but a chattel interest ; or, if debt be brought 
by the husband alone, on a bond as given to himself, the bond 
appearing to have been given to the husband and wife ; yet, the 
evidence is sufficient proof of the allegation.^ But, where the 



1 1 Chitty, PI. 268, 269 (5th Am. ed.) ; 
Howell V. Richards, 11 East, 033 ; Clarke 
V. Gray, 6 East, 564, 570. 

2 Beaver v. Lane, 2 Mod. 217 ; Arnold 
V. liivoult, 1 Br. & B. 442 ; VVhitlock v. 
Ramsey, 2 Munf. 510 ; Ankerstein v. 
Clark, 4 T. R. 616. It is said that an al- 
legation that J. S., otherwise R. S., made 
a deed, is not supported by evidence, that 
J. S. made a deed by the name of R. S. 
1 Stark. Evid. 513, citing Hyckman v. 
Shotbolt, Dyer, 279, pi. 9. The doctrine 
of tiiat case is very clearly expounded by 
Parke, B., in Williams v. Bryant, 5 Mees. 
& Wels. 447. In regard to a discrepancy 
between tlie name of the obligor in the 
body of a deed, and in the signature, a 
distinction is to be observed between 
transactions which derive their efficacy 
wholly from the deed, and those wliicli do 
not. Thus, in a feoffment at the common 
law, or a sale of personal property by 
deed, or the like, livery being made in the 
one case, and possession delivered in the 
other, the transfer of title is perfect, not- 
withstanding any mistake in the name of 
the grantor ; for it takes effect by delivery, 
and not by the deed. Perk.'§§ 38-12. 
But where tlie efficacy of the transaction 
depends on the instrument itself, as in the 
case of a bond for tlie ]Kiyment of money, 
or any other executory contract by deed, 
if the name of the obligor in the bond is 
different from the signature, as if it were 
written John and signed William, it is 
Baid to be void at law for uncertainty, 
unless hel[)ed by proper averments on the 
record. A ini>take in this matter, as in 
any other, in drawing up the contract, 
may be reformed by bill in equity. At 
law, wiiere the obligor has been sued by 
Lis true name, signed to the bond, and 



not by that written in the body of it, and 
the naked fact of the discrepancy, unex- 
plained, is all which is presented by the 
record, it has always been held bad. This 
rule was originally founded in this, that a 
man cannot have two names of baptism 
at the same time ; for whatever name was 
imposed at his baptism, whether single or 
compounded of several names, he being 
baptized but once, that and that alone was 
his baptismal name ; and by that name he 
declared himself bound. So it was held 
in Serchor v. Talbot, 3 Hen. VI. 25, pi. 6, 
and subsequently in Thornton v. Wikes, 
34 Hen. VI. 19, pi. 36; Field v. Winslow, 
Cro. El. 897 ; Oliver v. Watkins, Cro. Jac. 
558; Maby v. Shepherd, Cro. Jac. 640; 
Evans v. King, Willes, 554 ; Clerke r. 
Isted, Lutw. 275; Gould v. Barnes, 3 
Taunt. 504. " It appears from these cases 
to be a settled point," said Parke, B., in 
Williams v. Bryant, " tiiat if a declara- 
tion against a defendant by one Christian 
name, as, for instance, Joseph, state that 
he executed a bond by the name of 
Thomas, aHci there be no averment to er/>lain 
the difference, such as that he ivas known hij 
the latter name at the time of the execution, 
such a declaration would be bad on de- 
murrer, or in arrest of judgment, even 
after issue joined on a plea of non est fac- 
tum. And the reason appears to be, tliat 
in bonds and deeds, tlie efficacy of which 
depends on the instrument itself, and not 
on matter in jHiis, there must be a certain 
desiijnai io persona of the party, which regu- 
larly ougiit to be by tiie true first name or 
name of baptism, and surname ; of which 
the first is the most important." " But, 
on the other hand," he ailds, " it is cer- 
tain, tliat a person may at this time sue or 
be sued, not merely by his true name of 



CHAP, n.] 



THE SUBSTA2sCE OF THE ISSUE. 



89 



deed is set out, on oyer, the rule is otherwise ; for to have oyer is, 
in modern practice, to be fiu-nished with an exact and literal copy 
of the deed declared on, every word and part of which is thereby 
made descriptive of the deed to be offered in evidence. In such 
case, if the plaintiff does not produce in evidence a deed literally 
corresponding with the copy, the defendant may well say it is not 
the deed in issue, and it w^ill be rejected.^ 

§ 70. Records. Where a record is mentioned in the pleadings. 



baptism, but by any first name which he 
has acquired by usage or reputation." 
" If a party is called and known by any 
proper name, by that name he may be 
sued, and the misnomer coukl not be 
pleaded in abatement ; and not only is 
this the established practice, but the doc- 
trine is promulgated in very ancient 
times. In Bracton, 188 6, it is said, 
" Item, si quis binominis fuerit, sive in 
nomine jnoprio sive in cofjiwmine, illud 
nomen tenendum erit, quo solet frequen- 
tius appellari, quia adeo imposita sunt, ut 
demonstrent voluntatem dicentis, et uti- 
niur notis in vocis ministerio." And if a 
party may sue or be sued by the proper 
name by which he is known, it must be a 
sufficient designation of him, if he enter 
into a bond by that name. It by no means 
follows, therefore, that the decision in 
the case of Gould v. Barnes, and others 
before referred to, in which the question 
arose on the record, would have been the 
same, if there had been an averment on the 
face of the declaration that the party ivas 
known by the proper name in ichich the bond 
was made at the time of making it. We 
find no authorities for saying, that the 
declaration would have been bad with 
such an averment, even if there had been a 
total variance of the first names ; still less, 
where a man, having two proper names, 
or names of baptism, has bound himself 
by the name of one. And on the plea of 
" non est factum," where the difference of 
name does not appear on the record, and 
there is evidence of the party having 
been known, at the time of the execution, 
by the name on the instrument, there is 
no case, that we are aware of, which 
decides that the instrument is void." 
The name written in the body of the 
instrument is that which the party, by 
the act of execution and delivery, de- 
clai'es to be his own, and by which he 
acknowledges himself bound. By this 
name, therefore, he should regularly be 
sued ; and if sued with an alias dictus of 
his true name, by which the instrument 
was signed, and an averment in the 
declaration that at the time of executing 



the instrument he was known as well by 
the one name as the other, it is con- 
ceived that he can take no advantage of 
the discrepancy ; being estopped by the 
deed to deny this allegation. Evans v. 
King, Willes, 555, n. (b) ; Reeves v. 
Slater, 7 Barn. & Cress. 486, 490; Cro. 
El. 897, n. (a). See also Regina v. Wool- 
dale, 6 Ad. & El. 549, n. s. ; Wooster v.' 
Lyons, 5 Blackf. 60. If sued by the name 
written in the body of the deed, without 
any explanatory averment, and he pleads 
a misnomer in abatement, the plaintiff, in 
his replication, may estop him by the 
deed. Dyer, 279 b, pi. 9, n. ; Story's 
Pleadings, 43 ; Willes, 555, n. And if 
he should be sued by his true name, and 
plead ?ion est factum, wherever this plea, 
as is now the" case in England, since the 
rule of Hilary Term, 4 Wm. IV. R. 21, 
" operates as a denial of the deed in point 
of fact only," all other defences against it 
being required to be specially pleaded, the 
difficulty occasioned by the old decisions 
may now be avoided by proof that the 
party, at the time of the execution, was 
knovvn by the name on the face of the 
deed. In those American States which 
have abolished special pleading, substi- 
tuting the general issue in all cases, with 
a brief statement of the special matter 
of defence, probably the new course of 
practice thus introduced would lead to a 
similar result. 

1 Waugh V. Bussel, 5 Taunt. 707, 709, 
per Gibbs, C. J. ; James v. WalrutU, 8 
Johns. 410; Henry v. Cleland, 14 Johns. 
400; Jansen v. Ostrander, 1 Cowen, 670, 
ace. In Henry i'. Brown, 14 Johns. 49, 
where the condition of the bond was 
" without fraud or other delay," and in the 
oyer the word " other " was omitted, the 
defendant moved to set aside a verdict for 
the plaintiff, because the bond was ad- 
mitted in evidence without regard to the 
variance ; but the court refused the mo- 
tion, partly on the ground that the vari- 
ance was immaterial, and partly that the 
oyer was clearly amendable. See also 
Dorr V. Fenno, 12 Pick. 521. 



90 LAW OF EVIDENCE. [PAKT H. 

the same distinction is now aclmittecl in the proof, between 
allegations of matter of substance, and allegations of matter of 
description ; the former require only substantial proof, the latter 
must be literally proved. Thus, in an action for malicious prose- 
cution, the day of the plaintiff 's acquittal is not material. Neither 
is the term in which the judgment is recovered a material allega- 
tion in an action against the sheriff for a false return on the writ 
of execution. For in both cases, the record is alleged by way of 
inducement only, and not as the foundation of the action ; and 
therefore literal j^roof is not required.^ So, in an indictment for 
perjury in a case in chancery, where the allegation was, that the 
bill was addressed to Robert, Lord Henly, and the proof was of a 
bill addressed to Sir Robert Henly, Kt., it was held no variance ; 
the substance being, that it was addressed to the person holding 
the great seal.^ But where the record is the foundation of the 
action, the term in which the judgment was rendered, and the 
number and names of the parties, are descriptive, and must be 
strictly proved.^ 

§ 71. Prescriptions. In regard to prescriptions^ it has been 
already remarked that the same rules apply to them which are 
applied to contracts ; a prescription being founded on a grant 
supposed to be lost by lapse of time.^ If, therefore, a prescrip- 
tive right be set forth as the foundation of the action, or be 
pleaded in bar and put in issue, it must be proved to the full 
extent to which it is claimed ; for every fact alleged is descrip- 
tive of the supposed grant. Thus, if in trespass, for brealdng 
and entering a several fishery, the plaintiff, in his replication, 
prescribes for a sole and exclusive right of fishing in four places, 
upon which issue is taken, and the proof be of such right in only 
three of the places, it is a fatal variance. Or, if in trespass the 
defendant justify under a prescriptive right of common on five 
hundi'ed acres, and the proof be that his ancestor had released 

• Purcell V. Macnamara, 9 East, 157 ; of error brought to reverse the juclpmcnt 

Stoddart v. Palmer, 4 H. & B. 2 ; Pliillips of wait-fir, the judgment was called a jiidg- 

V, Shaw, 4 B. & A. 4:55 ; 5 B. & A. 9()4. merit of outlawry, the variance upon a plea 

2 Per Duller, J., in Rex i;. Pippett, 1 oi niil tl4 record was held fatal. Burnett 
T. R. 240 ; Rodman i;. Forman, 8 Johns, v. Phillips, 6 Eng. Law & Eq. 4G7. And 
29 ; Brooks »•. Bemiss, Id. 455 ; The State though the variance be in regard to facts 
V. Caffcy, 2 Murphy, 820. and circumstances which need not liave 

3 Rastall V. Stratton, 1 II. Bl. 49 ; been stated, it is still fatal. Whitaker v. 
Woodford V. Ashley, 11 East, 508 ; Black Bramson, 2 Paine, C. C. 209.] 

V. Braybrook, 2 Stark. 7 ; Baynes v. * Supra, § 68 [post, voL ii. §§ 537-646, 

Forrest, 2 Str. 892 ; United States v. Me- tit. Pbesckiption]. 
Neal, 1 Gall. 387. [And where, iu a writ 



CHAP, n.] THE SUBSTAl^CE OF THE ISSUE. 91 

five of them, it is fatal. Or if, in replevin of cattle, the defend- 
ant avow the taking damage feasant, and the plaintiff plead in 
bar a prescriptive right of common for all the cattle, on which 
issue is taken, and the proof be of such right for only a part of 
the cattle, it is fatal.^ 

§ 72. Prescriptions. But a distinctio7i is to be observed between 
cases, where the prescription is the foundation of the claim, and 
is put in issue, and cases where the action is founded in tort, for 
a disturbance of the plaintiff in his enjoyment of a prescriptive 
right. For in the latter cases it is sufficient for the plaintiff to 
prove a right of the same nature with that alleged, though not to 
the same extent ; the gist of the action being the wrongful act 
of the defendant, in disturbing the plaintiff in his right, and not 
the extent of that right. Therefore, where the action was for the 
disturbance of the plaintiff in his right of common, by opening 
stone quarries there, the allegation being of common, by reason 
both of a messuage and of land, whereof the plaintiff was pos- 
sessed, and the proof, in a trial upon a general issue, being of 
common by reason of the land only, it was held no variance ; the 
court observing, that the proof was not of a different allegation, 
but of the same allegation in part, which was sufficient, and that 
the damages might be given accordingly .^ Yet in the former 
class of cases, where the prescription is expressly in issue, proof 
of a more ample right than is claimed will not be a variance ; as, 
if the allegation be of a right of common for sheep, and the proof 
be of such right, and also of common for cows.^ 

§ 73. Amendments to remedy variance. But the party may now, 
in almost every case, avoid the consequences of a variance between 
the allegation in the pleadings and the state of facts proved, hy 
amendment of the record. This power was given to the courts 
in England by Lord Tenterden's Act,"* in regard to variances 
between matters in writing or in print, produced in evidence, and 
the recital thereof upon the record ; and it was afterwards ex- 
tended^ to all other matters, in the judgment of the court or 
judge not material to the merits of the case, upon such terms as 

1 Rogers v. Allen, 1 Campb. 313, 315 ; 8 Bushwood v. Pond, Cro. El. 722 ; 
Rotherham v. Green, Nov, 67 ; Convers Tewksbury v. BrickneU, 1 Taunt. 142 ; 
V. Jackson, Clayt. 19 ; Bull. N. P. 299. supra, §§ 58, 67, 68. 

2 Rickets V. Salway, 2 B. & A. 860 ; « 9 Geo. IV. c. 15. 

Yarley v. Turnoek, Cro. Jac. 629 ; Mani- 5 By Stat. 3 & 4 Wm. IV. c. 42, § 23. 

fold V. Pennington, 4 B. & C. 161. 



92 



LAW OF EVIDENCE. 



[part n. 



to costs and postponement as the court or judge may deem rea- 
sonable. The same power, so essential to the administration of 
substantial justice, has been given by statutes to the courts of 
most of the several States, as well as of the United States ; and 
in both England and America these statutes have, with great pro- 
priety, been liberally expounded, in furtherance of their beneficial 
design.^ The judge's discretion, in allowing or refusing amend- 
ments, like the exercise of judicial discretion in other cases, can- 
not, in general, be reviewed by any other tribunal.^ It is only in 
the cases and in the manner mentioned in the statutes, that the 
propriety of its exercise can be called in question. 



1 See Hanbury v. Ella, 1 Ad. & El. 61 ; 
Parry i-. Fairhurst, 2 Cr. M. & R. 190, 
196 ; Doe v. Edwards, 1 M. & Rob. 319 ; 
s. C.6C.& P. 208; Hemming v. Parry, 
6 C. &P. 580; Mash v. Densliam, 1 M. & 
Rob. 442; Ivey v. Young, Id. 515 ; How- 
ell V. Tliomas, 7 C. & P. 342 ; Mayor, &c., 
of Carmarthen v. Lewis, 6 C. & P. 608 ; 
Hill V. Salt, 2 C. & M. 420 ; Cox v. Painter, 
1 Nev. & P. 581 ; Doe v. Long, 9 C. & P. 
777 ; Ernest v. Brown, 2 M. & Rob. 13; 
Story V. Watson, 2 Scott, 842 ; Smith v. 
Brandram, 9 Dowl. 430; Whitwell v. 
Scheer, 8 Ad. & El. 301 ; Read v. Duns- 
more, 9 C & P. 588 ; Smith v. Knowel- 
den, 8 Dowl. 40 ; Norcott v. Mottram, 7 
Scott, 176 ; Legge v. Boyd, 5 Bing. N. C. 
240. Amendments were refused in Doe 
V. Errington, 1 Ad. & El. 750; Cooper 
V. Whiteliouse, 1 C. & P. 545 ; John v. 
Currie, Id. 618 ; Watkins v. Morgan, Id. 
661; Adams v. Power, 7 C. & P. 76; 
Brashier v. Jackson, G M. & W. 549 ; Doe 
V. Rowe, 8 Dowl. 444 ; Empson v. Griffin, 
3 P. & I). 168. The following are cases 
of variance, arising under Lord Tenter- 
den's Act. Bentzing v. Scott, 4 C. & P. 
24; Moilliet v. Powell, 6 C. & P. 223; 
Lamey v. Bishop, 4 B. & Ad. 479 ; Briant 



V. Eicke, Mood. & Malk. 359 ; Parks v. 
VAge, 1 C. & M. 429 ; Masterman v. Judson, 
8 Bing. 224 ; Brooks v. Blanchard, 1 C. & 
M. 779 ; Jelf v. Oriel, 4 C. & P. 22. The 
American cases, which are very numer- 
ous, are stated in 1 Metcalf & Perkins's 
Digests, p. 145-162, and in Putnam's 
Supplement, vol. ii. p. 727-730. [See 
also post, vol. ii. § 11 a-11 e.] 

2 Doe V. Errington, 1 M. & Rob. 344, 
n. ; Mellish v. Richardson, 9 Bing. 125 ; 
Parks V. Edge, 1 C. & M. 429 ; Jenkins v. 
Phillips, 9 C. & P. 766 ; Merriam v. Lang- 
don, 10 Conn. 460, 473; Chipp v. Balch, 
3 Greenl. 216, 219 ; Mandeville v. Wilson, 
6 Cranch, 15 ; Marine Ins. Co. v. Hodg- 
son, 6 Cranch, 206; Walden v. Craig, 9 
Wheat. 576; Chirac r. Reinicker, 11 
Wheat. 302; United States v. Buford, 3 
Peters, 12, 32 ; Benner v. Frey, 1 Binn. 
366; Bailey v. Musgrave, 2 S. & R. 219; 
Bright V. Sugg, 4 Dever. 492. But if the 
judge exercises his discretion in a manner 
clearly and manifestly wrong, it is said 
that the court will interfere and set it 
right. Hackman v. Fernie, 1 M. & W. 
505 ; Geach v. Ingall, 9 Jur. 691 ; 14 M. 
& VV. 95. 



CHAP, m.] 



THE BUKDKN OF PROOF. 



93 



CHAPTER III. 



OP THE BURDEN OF PROOF. 



§ 74. Upon which party it lies. A third rule which governs 
in the production of evidence is, that the obligation of proving 
any fact lies upon the party who suhstantially asserts the affirmative 
of the issue. This is a rule of convenience, adopted not because 
it is impossible to prove a negative, but because the negative 
does not admit of the direct and simple proof of which the affirma- 
tive is capable.^ It is, therefore, generally deemed sufficient, 
where the allegation is affirmative, to oppose it with a bare denial, 
until it is established by evidence. Such is the rule of the Roman 
law. " Ei incumbit probatio qui dicit, non qui negat." ^ As a con- 



1 Dranguet v. Prudhomme, 3 La. 83, 
86 ; Costigan v. Mohawk & Hudson 
R. Co., 2 Denio, 609 [Commonwealth v. 
Tuey, 8 Cash. 1 ; Burnham v. Allen, 1 
Gray, 496, 499 ; Crowninshield v. Crownin- 
shield, 2 Gray, 524, 529. The burden of 
proof and the weight of evidence are two 
very difEerent things. The former re- 
mains on the party affirming a fact in 
support of his case, and does not change 
in any aspect of tlie cause ; the latter 
shifts from side to side in the progress 
of a trial according to the nature and 
strength of the proofs offered in support 
or denial of the main fact to be estab- 
lished. Central Bridge Corporation v. 
Butler, 2 Gray, 132 ; Blanchard v. Young, 
11 Cush. 346 ; Spaulding v. Hood, 8 Cush. 
606, 606. Where the proof on both sides 
applies to one and the same proposition 
of fact, the party whose case requires the 
proof of that fact has all along the burden 
of proof, though the weight in either scale 
may at times preponderate. Powers v. 
Russell, 13 Pick. (Mass.) 76. Ordinarily, 
a witness who testilies to an affirmation 
is entitled to credit in preference to one 
who testifies to a negative, because the 
latter may have forgotten what actually 
occurred, while it is impossible to re- 
member what never existed. Stitt v, 
Huidekoper, 17 Wall. (U. S.) 384J. 

2 Dig. lib. 22, tit. 3, 1. 2 ; Mascard. de 
Prob. Concl. 70, tot.; Concl. 1128, n. 10. 
See also Tait on Evid. p. 1. [In general, 
where the plaintiff makes out a prima 



facie case, although the burden always 
remains on him to support his case, yet 
this prima facie case supports it, and 
becomes conclusive unless met and con- 
trolled by the defendant ; and, while the 
burden of proof does not strictly shift, 
but still remains with the plaintiff upon 
the facts he alleges, yet he may stand 
upon his prima facie case, and the de- 
fendant must take up the onus of con- 
trolling it, and this burden is upon him. 
Burnham v. Allen, 1 Gray (Mass.), 600; 
Eaton V. Alger, 47 N. Y. 61 ; Caldwell 
V. N. J. St. Nav. Co., lb. 290. Strictly 
speaking, there is no shifting of burdens 
from one party to tlie other in the prog- 
ress of a trial upon any specific allega- 
tion essential to his case. But where tiie 
plaintiff has carried his burden to that 
point at which he will be entitled to a 
verdict, if nothing is done by the defend- 
ant, then the defendant takes up his 
burden, and meets and counteracts the 
plaintiff's case, if he can. But eacli 
carries his own burden throughout the 
trial, and that is to prove the facts he 
alleges. Crowninshield v. Crowninshield, 
2 Gray (Mass.), 524. " The burden upon 
the plaintiff is coextensive only "vith the 
legal propositions upon which his case 
rests. It applies to every fact which is 
essential or necessarily involved in that 
proposition. It does not apply to facts 
relied on in defence to establish an inde- 
pendent proposition, however inconsist- 
ent it may be with that upon which the 



94 LAW OF EVIDENCE. [PAET H. 

sequence of this rule, the party who asserts the affirmative of the 
issue is entitled to begin and to reply ; and having begun, he is 
not permitted to go into half of his case, and reserve the remain- 
der ; but is generally obliged to develop the whole. ^ Regard is 
had, in this matter, to the substance and effect of the issue, rather 
than to the form of it ; for in many cases the party, by making a 
slight change in his pleading, may give the issue a negative or an 
affirmative form, at his pleasure. Therefore in an action of cove- 
nant for not repairing, where the breach assigned was that the 
defendant did not repair, but suffered the premises to be ruinous, 
and the defendant pleaded that he did repair, and did not suffer 
the premises to be ruinous, it was held that on this issue the 
plaintiff should begin.^ If the record contains several issues, 
and the plaintiff hold the affirmative in any one of them, he is 
entitled to begin ; as, if in an action of slander for charging the 
plaintiff with a crime, the defendant should plead not guilty, and 
a justification. For wherever the plaintiff is obliged to produce 
any proof in order to establish his right to recover, he is generally 
required to go into his whole case, according to the rule above 
stated, and therefore is entitled to reply. How far he shall pro- 
ceed in his proof, in anticipation of the defence on that or the 
other issues, is regulated by the discretion of the judge, accord- 
ing to the circumstances of the case ; regard being generally had 
to the question, whether the whole defence is indicated by the 
plea, with sufficient particularity to render the plaintiff's evi- 
dence intelligible.^ 

plaintiff's case depends. It is for the on either side ; for the burden of proof 

defendant to furnish proof of such facts; lies on the party against whom, in such 

and when lie has done so, the burden is case, the verdict ou,u;ht to be given, 

upon tlie plaintiff, not to disprove these Leete v. Greshain Life Ins. Co., 7 Eng. 

particular facts, nor tlie proposition Law & Eq. 578; 15 Jur. 11(11. And 

winch they tend to establish, but to see Hackman v. Fernie, 3 M. & W. 510. 

maintain tlie proposition upon which [Mr. Taylor suggests two other tests. 

his own case rests, notwitlistanding such First, to consider wliich party would suc- 

(.ontrolling testimony and upon the whole cced if no evidence were given on eitlier 

evidence in the case. Wilder v. Cowles, side ; and, second, to examine what would 

lUO Mass. 487. And see post, §§ 80 n., be the effect of striking out of the roc- 

81 a, HI /;, 81 c-l ord the allegations to be proved, that 

1 Kevs V. Smith, 2 Stark. .31 ; 3 Clritty, " the burden of proof rests u])on tlie party 

Gen. Pract 872-877 ; Swift's Law of whose case would be thereby destroyed. 

Evid. p. 152; Bull. N. P. 2!)8; Browne i>. 1 Taylor Ev. § 338; citing Amos v. 

Murray, H- & Mood. 254; .Jones v. Ken- Hughes, 1 M. & Kob. 464, per Alderson. 

nedy, 11 Pick. 125, 132. Tlie true test B. ; Doe v. Rowlands, 9 C. & P. 73-5, and 

to determine which party has the right Osborn v. Thom])son, 2 M. & R. 256 as to 

to begin, and of course to determine the first, and Mills i'. Barber, 1 M. & W. 

where is the burden of proof, is to con- 427, as to the second.] 

sider which party would be entitled to ^ Soward v. Leggatt, 7 C. & P. 613. 

the verdict, if no evidence were offered » Recs v. Smith, 2 Stark. 31; Jack* 



CHAP, in.] THE BURDEN OF PROOF. 95 

§ 75. Damages. Whether the necessity of proving damages, on 
the part of the phiintiff, is such an affirmative as entitles him to begni 
and reply, is not perfectly clear by the authorities. Where such 
evidence forms part of the proof necessary to sustain the action, 
it may AveU be supposed to fall within the general rule ; as, in an 
action of slander, for words actionable only in respect of the 
special damage thereby occasioned ; or, in an action on the case, 
by a master for the beating of his servant per quod servltium 
amisit. It would seem, however, that where it appears by the 
record, or by the admission of counsel, that the damages to be 
recovered are only nominal, or are mere matter of computation, 
and there is no dispute about them, the formal proof of them will 
not take away the defendant's right to begin and reply, whatever 
be the form of the pleadings, provided the residue of the case is 
affirmatively justified by the defendant.^ And if the general 
issue alone is pleaded, and the defendant will, at the trial, admit 
the whole of the plaintiff's case, he may still have the advantage 
of the beginning and reply .^ So also in trespass quare clausum 
f regit, where the defendant pleads not guilty as to the force and 
arms and whatever is against the peace, and justifies as to the 
residue, and the damages are laid only in the usual formula of 
treading down the grass, and subverting the soil, the defendant 
is permitted to begin and reply ; there being no necessity for any 
proof on the part of the plaintiff.^ 

son V. Hesketh'Id. 518; James v. Salter, porter's note on that case, in 1 Mood. & 

1 M. & Rob. 501 ; Rawlins v. Desborough, M. 278-281. The diciiim of the learned 

2 M. & Rob. 328 ; Comstock v. Hadlynie, judge, in Brooks v. Barrett, 7 Pick. 100, 
8 Conn. 261 ; Curtis v. Wheeler, 4 C. & is not supposed to militate with this 
P. 196 ; s. c. 1 M. & M. 493 ; Williams v. rule ; but is conceived to apply to cases 
Thomas, 4 C. & P. 234 ; 7 Pick. 100, per where proof of the note is required of 
Parker, C. J. In Browne v. Murray, Ry. the plaintiff. Sanford v. Hunt, 1 C. & P. 
& Mood. 2.54, Lord C.J. Abbott gave the 118; Goodtitle v. Braham, 4 T. R. 497. 
plaintiff his election, after proving the [For a qualification of Brooks f. Barrett, 
general issue, either to proceed immedi- see Crowninshield v. Crowninshield, 2 
ately with all his proof to rebut the an- Gray, 528.] 

ticipated defence, or to reserve such - Tucker v. Tucker, 1 Mood. & M. 
proof till the defendant had closed his 536; Fowler v. Coster, Id. 241; Doe v. 
own evidence; only refusing him the Barnes,! M. &Rob. 386; Doe v. Smart, 
privilege of dividing his case into halves, Id. 476 ; Fish v. Travers, 3 C. & P. 578; 
giving part in the first instance, and the Comstock v. Hadlyme, 8 Conn. 261 ; 
residue after the defendant's case was Lacon i'. Higgins, 3 Stark. 178; Corbett 
proved. [York v. Pease, 2 Gray, 282 ; v. Corbett, 3 Campb. 368 ; Foman v. 
Holbrook v. McBride, 4 Id. 218 ; Cush- Thompson, 6 C. & P. 717 ; Smart v. Ray- 
ing V. Billings, 2 Cush. 158. Evidence ner, Id. 721 ; Mills v. Oddy, Id. 728 ; Scott 
in rebuttal is not inadmissible, because v. Hull, 8 Conn. 296. But see hfra, § 76, 
it corroborates the evidence in chief, n. 4. 

Wright V. Foster, 109 Mass. 57.] » Hodges v. Holden, 3 Campb. 366 ; 

1 Fowler v. Coster, 1 Mood. & M. 243, Jackson v. Hesketh, 2 Stark. 618 ; Pear- 

per Lord Teuterden. And see the re- son v. Coles, 1 Mood. & Rob. 200 ; Davis 



96 



LAW OF EVIDENCE. 



[part n. 



§ 76. Unliquidated damages. The difficulty in determining this 
point exists chiefly in those cases, where the action is for unliqui- 
dated damages^ and the defendant has met the whole case with 
an affirmative plea. In these actions the practice has been 
various in England ; but it has at length been settled by a rule, 
by the fifteen judges, that the plaintiff shall begin in all actions 
for personal injuries, libel, and slander, though the general issue 
may not be pleaded, and the affirmative be on the defendant.^ 
In actions upon contract, it was, until recently, an open question 
of practice ; having been sometimes treated as a matter of right 
in the part}^ and at other times regarded as resting in the discre- 
tion of the judge, under all the circumstances of the case.^ But 
it is now settled, in accordance with the rule adopted in other 
actions.^ In this country it is generally deemed a matter of dis- 
cretion, to be ordered by ihe judge at the trial, as he may think 
most conducive to the administration of justice ; but the weight 
of authority, as well as the analogies of the law, seem to be in 
favor of giving the opening and closing of the cause to the plain- 
tiff, wherever the damages are in dispute, unliquidated, and to be 
settled by the jury upon such evidence as may be adduced, and 
not by computation alone.* 



V. Mason, 4 Pick. 156 ; Leech v. Ar- 
mitage, 2 Dall. 125. [Where a defend- 
ant under a rule of court filed an admis- 
sion of the plaintiff's prima facie case, in 
order to obtain the right to open and 
close, he was held not to be thereby 
estopped from setting up in defence the 
statute of limitations, Emmons i-. Hay- 
ward, 11 Cush. 48; nor from showing 
that the plaintiff had no title to the note 
sued on. Spaulding v. Hood, 8 Cush. 
602. An auditor's report in favor of the 
plaintiff will not give the defendant the 
right to opc-n and close. Snow v. Batch- 
elder, 8 Cush. 513.] 

J Carter v. Jones, 6 C. & P. 64. 

2 Bedell v. Russell, R. Y. & M. 20,3 ; 
Fowler V. Coster. 1 M. & M. 241; Revett 
V. Braham, 4 T. R. 497 ; Hare v. Munn, 1 
M. & M. 241, n. ; Scott v. Hull, 8 Conn. 
296 ; Burrcll v. Nicholson, 6 C. & P. 202 ; 
1 M. & R. 304, .300; Hoggett i-. Exley, 9 
C. & P. 324. See also 3 Chitty, Gen. 
Practice, 872-877. 

3 Mercer v. Whall, 9 Jur. 576; 5 Ad. 
& El. N. s. 447. 

* Such was the course in Young v. 
Bairner, 1 Esp. 103, which was assumpsit 
for work, and a plea in abatement for the 
non-joinder of other defendants, a. p., 



Robey v. Howard, 2 Stark. 555; s. p., 
Stansfield v. Levy, 3 Stark. 8; Lacon v. 
Higgins, 2 Stark. 178, where, in assumpsit 
for goods, coverture of the defendant 
was the sole plea; Hare v. Munn, 1 M 
& M. 241, n., which was assumpsit for 
money lent, with a plea in abatement 
for the non-joinder of other defendants ; 
s. p., Morris v. Lotan, 1 M. c& Rob. 233; 
Wood V. Pringle, Id. 277, which was an 
action for a libel, with several si)ecial 
pleas of justification as to part, but no 
general issue ; and, as to the parts not 
justified, judgment was suffered by de- 
fault. See ace. Comstock v. Hadlvme, 
8 Conn. 261 ; Aver v. Austin, 6 Pick."225 ; 
Hoggett V. E.xley, 9 C. & P. 324 ; s. c. 2 
M. & Rob. 251. On the other liand are 
Cooper V. Wakley. 3 Car. & P. 474; s. c. 
1 M. & M. 248, which was a case for a 
libel, with j)leas in justification, and no 
general issue; but tiiis is plainly contra- 
dicted hy the subsequent case of Wood 
V. Pringle, and has since been overruled 
in Mercer v. Whall ; Cotton v. James, 1 
M. & M. 273 ; s. c. 3 Car. & P. 505, which 
was trespass for entering the plaintiff's 
house, and taking his goods with a plea 
of justification under a commission of 
bankruptcy; but this also is expressly 



CHAP, m.] 



THE BUBDEN OF PROOF 



97 



§ 77. In proceedings not at common law. Where the proceed- 
ings are not according to the course of the common law, and 



contradicted in Morris v. Lotan ; Bedell 
V. Russell, Ky. & M. 293, which was tres- 
pass of assault and battery, and battery, 
and for shooting the plaintiff, to which a 
justification was pleaded; where Best, 
J., reluctantly yielded to the supposed 
ruthority of Hodges v. Holden, 3 Campb. 
866, and Jackson i\ Hesketh, 2 Stark. 
581 ; in neitlier of which, however, were 
the damages controverted ; Fish v. Trav- 
crs, 3 Car. & P. 578, decided by Best, J., 
on the authority of Cooper v. Wakley, 
and Cotton v. James ; Burrell i». Nichol- 
son, 6 Car. S, P. 202, which was trespass 
for taking the plaintiff's goods in his 
house, and detahiing them one hour, 
which the defendant justified as a dis- 
tress for parish rates ; and the only issue 
was, whether the house was within the 
parish or not. But here, also, the dam- 
ages were not in dispute, and seem to 
have been regarded as merely nominal. 
See also Scott r. Hull, 8 Conn. 296. In 
Norris v. Ins. Co. of North America, 3 
Yeates, 84, which was covenant on a 
policy of insurance, to which perform- 
ance was pleaded, tlie damages were not 
then in dispute, the parties having pro- 
visionally agreed upon a mode of liqui- 
dation. But in England the entire sub- 
ject has recently undergone a review, 
and the rule has been established, as ap- 
plicable to all personal actions, that the 
plaintiff shall begin, wherever he goes 
for substantial damages not already as- 
certained. Mercer v. Whall, 9 Jur. 576 ; 
5 Ad. & El. N. s. 447. In this case Lord 
Denman, C. J., in delivering the judg- 
ment of the court, expressed his opinion 
as follows: "The natural course would 
seem to be, that the plaintiff should 
bring his own cause of complaint before 
the court and jury, in every case where 
be has any thing to prove either as to 
the facts necessary for his obtaining a 
verdict, or as to the amount of damage 
to which be conceives the proof of such 
facts may entitle him. The law, how- 
ever, has bj' some been supposed to differ 
from this course, and to require that the 
defendant, bj* admitting the cause of 
action stated on the record, and pleading 
only some affirmative fact, which, if 
proved, will defeat the plaintiff's action, 
may entitle himself to open the proceed- 
ing at the trial, anticipating tlie plain- 
■ tiff's statement of his injury, disparaging 
him and his ground of complaint, offer- 
ing or not offering, at his own option, 
any proof of his defensive allegation, 

VOL. I. 



and, if he offers that proof, adapting it 
not to the plaintiff's case as established, 
but to that which he chooses to repre- 
sent that the plaintiff's case will be. It 
appears expedient that the plaintiff 
should begin, in order that the judge, 
the jury, and the defendant himself 
should know precisely how the claim is 
shaped. This disclosure may convince 
the defendant that the defence which he 
has pleaded cannot be established. On 
hearing the extent of the demand, the 
defendant may be induced at once to sub- 
mit to it rather than persevere. Thus 
the affair reaches its natural and best 
conclusion. If this does not occur, the 
plaintiff, by bringing forward his case, 
points his attention to the proper object 
of the trial, and enables the defendant 
to meet it with a full understanding of 
its nature and character. If it were a 
presumption of law, or if experience 
prove that the plaintiff's evidence must 
always occupy many hours, antl that the 
defendant's could not last more than as 
many minutes, some advantage would 
be secured by postponing the plaintiff's 
case to that of the defendant. But, first, 
the direct contrary in both instances may 
be true; and, secondly, the time would 
only be saved by stopping the cause for 
the purpose of taking the verdict at the 
close of the defendant's proofs, if that 
verdict were in favor of the defendant. 
This has never been done or proposed ; 
if it were suggested, the jury would be 
likely to say, on most occasions, that 
they could not form a satisfactory opin- 
ion on the effect of the defendant's 
proofs till they had heard the grievance 
on which the plaintiff founds his action. 
In no other case can any practical ad- 
vantage be suggested as arising from 
this method of proceeding. Of the dis- 
advantages that may result from it, one 
is the strong temptation to a defendant 
to abuse the privilege. If he well knows 
that the case can be proved against him, 
there maj- be skilful management in 
confessing it by his plea, and affirming 
something by way of defence which he 
knows to be untrue, for the mere pur- 
pose of beginning." See 9 Jur. 578; 5 
Ad. & El. N. s. 458. Ordinarily speak- 
ing, the decision of the judge, at Nisi 
Piius, on a matter resting in his discre- 
tion, is not subject to revision in any 
other court. But in Hackman (•. Fernie, 
5 M. & W. 505, the court observed that, 
though they might not interfere in a 



98 



LAW OF EVIDENCE. 



[part n. 



where, consequently, the onus prohandi is not technically pre- 
sented, the courts adopt the same principles which govern in 
proceedings at common law. Thus, in the probate of a will, as 
the real question is, whether there is a valid will or not, the 
executor is considered as holding the affirmative ; and therefore 
he opens and closes the case, in whatever state or condition it 
may be, and whether the question of sanity is or is not raised.^ 

§ 78. Negative allegations. To this general rule, that the bur- 
den of proof is on the party holding the affirmative, there are 
some exceptions, in which the proposition, though negative in its 
terms, must be proved by the party who states it. One class of 
these exceptions will be found to include those cases in which 
the plaintiff (/rounds his right of action upon a negative allegation, 
and where, of course, the establishment of this negative is an 
essential element in his case;^ as, for example, in an action for 



Tery doubtful case, yet if tlie decision of 
tlie judge "were clearly and manifestly 
wrong," tliey would interfere to set it 
riglit. In a subsequent case, however, 
it is said that, instead of " were clearly 
and manifestly wrong," the language act- 
ually uscil by the court was, "did clear 
and manifest wrong;" meaning tliat it 
was not sufficient to show merely that 
the wrong party liad begun, but that 
some injustice liad been done in conse- 
quence. See Edwards v. Mattliews, 11 
Jur. 398. See also Geach ;•. Ingall, 9 
Jur. 691; 14 M. & W. 95. [In Page v. 
Osgood, 2 Gray, 2G0, the question arose, 
wlio should have the opening and close 
to the jury, the defendant admitting the 
plaintiff's cause of action, and the only 
issue being on the defendant's declara- 
tion in set-off; wliicli demand in set-off 
the statute provides "sluiU bo tried in 
like manner as if it had been set forth in 
an action brought by him," and there 
being a uniform rule of court giving the 
right of oi)enitig ami closing in all cases 
to tlie plaintiff. The court hold that 
there was no reason for departing from 
the rule which had been found to be of 
great practical convenience, and over- 
ruled the exceptiuns, thus sustaining tlie 
jilaintiff's right in such a case to open 
an.l close. It seems to have been con- 
sidered, in s(jme of the Anu'rican States, 
that in actions like slander, where the 
defendant admits the speaking of the 
words, an<l offers evi(U'nce in justifica- 
tion, or even in mitigation of damages, 
lie is entitlcfl to open the case, (iaul 
r. Fleming, 10 Ind. lio. Hut tiiat i)ri)j)- 
osition is certainly not maintainable. 



since the plaintiff is still entitled to 
give evidence of facts showing special 
malice, in aggravation of damages, and 
to open the case generally upon the 
question of damages. Tlie English form 
of expression upon tliis point will go 
far to indicate the precise inquiry upon 
Avhich the riglit should turn. The in- 
quiry there is, which party has tlie right 
"to begin"? And that will determine 
where the right to close rests. The 
party first required to give proof has the 
opening and the general close ; the other 
party being required to give all his evi- 
dence, both in reply to plaintiff's case 
and support of his own, at one time, 
leaving the general reply to the other 
party.) 

^ liuckminster v. Perry, 4 Mass. 593; 
Brooks v. Barrett, 7 Pick*. 9-1; Comstock 
V. Iladlyme, 8 Conn. 254 ; Ware ". Ware, 
8 Green!. 42; Ilul)bard v. Iliibbard, 6 
Mass. o97. [Crowninshield v. Crownin- 
shield, 2 Gray, 524, 528.] 

- 1 Chitt V on PI. 2l)i; ; Spiers v. Parker, 
1 T. R. 141"; Bex r. Pratten, 6 T. B. 559 ; 
Holmes v. Love, 3 B. & C. 242; Lane v. 
Cromhie, 12 Pick. 177; Harvey i\ Tow- 
ers, 15 Jur. 544; 4 Eng. Law & Eq. Bep. 
531. [Mr. Taylor, Ev. § 389, states as 
an e.\cc])tion, that where the affirmative 
is sujiported by a liL-piitahlc presuM)[)tion 
of law, the fiarty sii]ii)crling the negative 
must call witnesses, in tlie first instance, 
to overcome this presumption. Williams 
V. E. India Co., 3 East, 192, and also as 
another exception (ij 3 17) that where the 
subject-matter of the allegation was jie- 
culiarly within the knowledge of one of 
the parties, that party must prove its 



CHAP, m.] THE BURDEN OF PROOF. 99 

having prosecuted the plaintiff maliciously and without probable 
cause. Here, the want of probable cause must be made out by 
the plaintiff, by some affirmative proof, though the proposition be 
negative in its terms. ^ So, in an action by husband and wife, on 
a promissory note made to the wife after marriage, if the defend- 
ant denies that she is the meritorious cause of action, the burden 
of proving this negative is on him.^ So, in a prosecution for a 
penalty given b}^ statute, if the statute, in describing the offence,' 
contains negative matter, the count must contain such negative 
allegation, and it must be supported by prima facie proof. Such 
is the case in prosecations for penalties given by statutes, for 
coursing deer in enclosed grounds, not having the consent of the 
owner ; ^ or for cutting trees on lands not the party's own, or 
taking other property, not having the consent of the owner ; * or 
for selling, as a peddler, goods not of the produce or manufacture 
of the country ; ^ or for neglecting to prove a will, without just 
excuse made and accepted by the Judge of Probate therefor.^ 
In these, and the like cases, it is obvious, that plenary proof on 
the part of the affirmant can hardly be expected ; and, therefore, 
it is considered sufficient if he offer such evidence as, in the 
absence of counter testimony, would afford ground for presuming 
that the allegation is true. Thus, in an action on an agreement 
to pay £100, if the plaintiff would not send herrings for one year 
to the London market, and, in particular, to the house of J. & A. 
Millar, proof that he sent none to that house was held sufficient 
to entitle him to recover, in the absence of opposing testimony .^ 
And generally, where a party seeks, from extrinsic circumstances, 
to give effect to an instrument which, on its face, it would not 
have, it is incumbent on him to prove those circumstances, though 
involving the proof of a negative ; for, in the absence of extrinsic 
proof, the instrument must have its natural operation, and no 
other. Therefore, where real estate was devised for life with 

entry. Dickson v. Evans, 6 T. R. But ^ Commonwealth v. Samuel, 2 Pick, 

see Elk in v. Janson, 13 M. & N. 662.] 103. 

5 PurccU V. Macnamara, 1 Campb. 190; ^ Smith v. Moore, 6 Greenl. 274. See 

8. c. 9 East, 361; Ulnier v. Leland, 1 other examples in Commonwealth r. Max- 

Greenl. 134; Gibson v. Waterhouse, 4 well, 2 Pick. 139 ; 1 East, P. C. 166, § 15; 

Greenl. 226. Williams v. Hingham and Quincy Turn- 

2 Pliilliskirk V. Pluckwell, 2 M. & S. pike Co., 4 Pick. 341 ; Rex v. Stone, 1 
895 ; per Bavley, J. East, 637 ; Rex v. Burditt, 4 B. & Aid. 95, 

3 Rex 1-. Rogers, 2 Campb. 654; Rex 140; Rex v. Turner, 5 M. & S. 206; 
V. Jarvis, 1 East, 643, n. Woodbury v. Frink, 14 111. 279. 

* Little r. Thompson, 2 Greenl. 128; '' Calder v. Rutherford, 3 B. & B. 302; 

Rex V. Hazy et at., 2 C. & P. 458. 8. c. 7 Moore, 158. 



100 



LAW OF EVIDENCE. 



[part n. 



power o/ appointment by will, and the devisee made his will, 
devising all his lands, but without mention of or reference to the 
power, it was held no execution of the power, unless it should 
appear that he had no other lands ; and that the burden of show- 
ing this negative was upon the party claiming under the will as 
an appointment.^ 

§ 79. Negative allegations. But where the subject-matter of a 
negative averment lies peculiarly ivithin the hioivledge of the 
other party, the averment is taken as true, unless disproved by 
that party. Such is the case in civil or criminal j)rosecutions for 
a penalty for doing an act which the statutes do not permit to be 
done by any persons, except those who are duly licensed therefor ; 
as, for selling liquors, exercising a trade or profession, and the 
like. Here the party, if licensed, can immediately show it, with- 
out the least inconvenience ; whereas, if proof of the negative 
were required, the inconvenience would be very great.^ 



1 Doe V. Johnson, 7 Man. & Gr. 1047. 

2 Rex V. Turner, 5 M. & S. 206 [but 
Alderson, B., in Elkin v. Janson (13 
M. & W. G02), referring to Rex v. Tur- 
ner, doubted whether the expressions 
of tlie judge in that case were not too 
strong, and thouglit that, tliough sound 
as to tlie right of evidence, tliere should 
be some evidence in order to cast tlie 
onus on the other side] ; Smith v. Jeffries, 
9 Price, 2-57 ; .Slieldon v. Clark, 1 Jolins. 
513; United States r. Hayward, 2 Gall. 
485; Gening v. Tlie State, 1 McCord, 
673; Commonwealth v. Kimball, 7 Met. 
304; Harrison's case, Paley on Conv. 
45, n. ; Apothecaries' Co. v. Bentley, \\y. 

6 Mood. 159 ; Haskill i". Tiie Common- 
wealth, 3 B. Monr. 342; The State v. 
Morrison, 3 Dev. 2y'J ; The State ;•. Crow- 
ell, 12 Shepl. 171 ; Sliearer v. The State, 

7 Blackf. yj. [But the authorities differ 
on this point. In North Carolina (State 
V. Evans), 5 Jones, L. 250, it is held that 
the State negativing a license must prove 
the negative. So they differ as to the 
burden of proof where the seller of in- 
toxicating liquor sues for the power. In 
I'enn.sylvania it is held that the jjurcliaser, 
denying tlie license, must prove his denial. 
Elsewhere it is held that the »(i\\vr must 
sliow his license to sell. Bliss v. Brainard, 
41 N. 11. 250; Solomon v. Dreschler, 4 
Minn. 278; Kane v. Johnston, 9 Bosw, 
N. Y. 154.] By a statute of Massnchnsctts, 
1844, c. 102, the burden of proving a 
license for the sale of liquors is expressly 
devolved on the ])ers()n selling, in all 
proaeculious for selling liquors without 



a license. [See also Commonwealth v. 
Thurlow, 24 Pick. 374, 381, which was 
an indictment against the defendant for 
presuming to be a retailer of spirituous 
liquors without a license therefor. In this 
case the court did not decide the general 
question, saying that " cases may be af- 
fected by special circumstances, giving 
rise to distinctions applicable to them to 
be considered as they arise," but held 
under that indictment that the govern- 
ment must produce jn'nnn fucie evidence 
that the defendant was not licensed. 
See post, vol. iii. § 24 and n. In Com- 
monwealth V. Kimball, 7 Met. 304, the 
court held, in a similar indictment, that 
the docket and minutes of the county 
commissioners, before their records are 
made up, arc competent evidence, and if 
no license to the defendant appears on 
such docket or minutes (the county coni- 
missioners heing the sole authority to 
grant licenses), it is prima facie evidence 
that the defendant was not licensed. 

It has been decided that the provisions 
of the Massachusetts Act of 1844, c. 102, 
do not apply to indictments under the law 
of 18.55, c. 405, which enacts that all 
buildings, &c., used for tlie illegal sale or 
keeping of intoxicating liquors, shall be 
deemed common nuisances; an act of 
the same year (Acts 1855, c. 215), mak- 
ing any sale or keeping for sale, within 
the State, of intoxicating liquors unless 
in the original packages, «.^c., without 
authority, an unlawful and criminal act. 
This was decided in Commonwealth v. 
Lahey, S. J. C. Berkshire, Sept. T. 1857. 



CHAP, in.] THE BUEDEN OF PROOF. 101 

§ 80. Negative allegations. So, where the negative allegation 
involves a charge of criminal neglect of duty^ whether official or 
otherwise ; or fraud ; or the wrongful violation of actual lawful 
possession of property ; the party making the allegation must 
prove it ; for in these cases the presumption of law, which is 
always in favor of innocence and quiet possession, is in favor of 
the party charged.^ Thus, in an information against Lord Hali- 
fax ^ for refusing to deliver up the rolls of the Auditor of the Ex- 
chequer, in violation of his duty, the prosecutor was required to 
prove the negative. So, where one in office was charged with 
not having taken the sacrament within a year ; and where a sea- 
man was charged with having quitted the ship, without the leave 
in writing required by statute ; and where a shipper was charged 
with having shipped goods dangerously combustible on board the 
plaintiffs ship, without giving notice of their nature to any officer 
on board, whereby the ship was burned and lost ; in each of 
these cases, the party alleging the negative was required to prove 
it.2 So, where the defence to an action on a policy of insurance 
was, that the plaintiff improperly concealed from the underwriter 
certain facts and information which he then already knew and 
had received, it was held that the defendant was bound to give 
some evidence of the non-communication.^ So, where the goods 
of the plaintiff are seized and taken out of his possession, though 
for an alleged forfeitui-e under the revenue laws, the seiziu'e is 
presumed unlawful until proved otherwise.* 

not yet reported; which was an indict- of the plaintiff's debtor, the burden of 

ment under the Act of 1855, c. 405, for proving that the property was so far the 

maintaining a common nuisance in keep- debtor's as to be liable to attachment as 

ing a building used for the illegal sale of his is upon the plaintiff throughout, al- 

intoxicating liquors. The court below though the defendant claims the title to 

ruled that the government need not show himself under a purchase from the debtor, 

that the defendant was not licensed, but, Phelps v. Cutler, 4 Gray, 13'J.] 
if tlie defendant relied on a license to sell « Elkin v. Janson, 13 M. & W. 655. 

in his defence, he should show that fact. * Aitcheson v. Maddock, Peake's Caa. 

The Supreme Judicial Court sustained 162. An exception to this rule is adrait- 

the exceptions to this ruling. See note of ted in Chancery in the case of attorney 

the decision in this case in 20 Law Hep. and client ; it being a rule there, that if 

(Oct. 1857) 352.1 the attorney, retaining the connection, 



1 [Ante, § 35.J contracts with his client, he is subject to 

2 United States v. Hayward, 2 Gall, the burden of proving that no advantage 
498 ; Hartwell v. Root, 19 Johns. 345 ; has been taken of the situation of the lat- 
Bull. N. P. [298] ; Rex v. Hawkins, 10 ter. 1 Story, Eq. Jur. § 311 ; Gibson v. 
East, 211 ; Prontine v. Frost, 3 B. & P. Jeyes, 6 Ves; 278 ; Cane v. Ld. Allen, 2 
302 ; Williams v. E. India Co., 3 East, Dow, 289, 294, 299. [So in trespass 
192. See also Commonwealth v. Stow, 1 brought by the owner of land against a 
Mass. 54 ; Evans v. Birch, 3 Campb. 10. railroad corporation, where the plaintiff 
[So in an action against an officer for neg- has shown his title to the land, the entry 
lecting to attach property as the property by the defendants and the construction 



102 



LAW OF EVIDENCE. 



[PAET n. 



§ 81. Infancy, insanity, death, negligence, failure of consideration. 
So, where infancy is alleged ; ^ or, where one born in lawful wed- 
lock is alleged to be illegitimate^ the parents not being separated 
by a sentence of divorce ; ^ or, where iyisanity is alleged ; ^ or, a per- 
son once living is alleged to be dead, the presumption of life not 
being yet worn out by lapse of time ; ^ or, where nonfeasance or 
negligence is alleged, in an action on contract ; ^ or, Avhere the 
want of a due stamp is alleged, there being faint traces of a stamp 
of some kind ; ^ or, where a failure of consideration is set up by 
the plaintiff, in an action to recover the money paid ; '^ or, where 
the action is founded on a deficiency in the quantity of land sold, 
and the defendant alleges, in a special plea, that there was no 
deficiency ; ^ the burden of proof is on the party making the alle- 
gation, notwithstanding its negative character. 

[§ 81 a. In actions upon promissory notes or bills of exchange, if it be shown that 
they were stolen, or otherwise fraudulently put in circulation, the burden of proof is 
on the liolder to show that he took them in good faith. IMonroe v. Cooper, 5 Pick. 
412; Worcester Co. Bank v. Dorchester, &c. Bank, 10 Cush. 488, 491 ; Wyer v. Dor- 
chester, &c. Bank, 11 Cush. 52; Bissell v. Morgan, lb. 198; Fabens v. Tirrell, 15 
Law Rep. (May, 1852) 44; Perrin v. Noyes, 39 Maine, 384; Goodman v. Harvey, 4 
Ad. & El. 870 ; Arbourn v. Anderson, 1 Ad. & El. N. R. 504. According to recent 
decisions, that burden is very light. Worcester Co. Bank v. Dorchester, &c. Bank ; 



of their road upon it, the defendants must 
justify by showing that tliis land is 
covered by tlie authorized location of 
their road. Hazen v. Boston & Maine 
R. R. 2 Gray, 574, 579. Where such 
land is sliown or admitted to be so cov- 
ered by the location, tiie burden does 
not rest on tlie corporation or its ser- 
vants, to show that acts done on such 
land, as cutting down trees, were done 
for the purposes of the road. Brainard v. 
Clapp, 10 Cusli. 6. So every imprison- 
n)cnt of a man is, prima facie, a trespass ; 
and in an action to recover damages 
therefor, if tlie imprisonment is proved 
or admitted, the burden of justifying it 
is on tiie defendant. Metcalf, J., in 
Bassett v. Porter, 10 Cush. 420.] 

1 Borthwick v. Carruthers, 1 T. R. 
648. 

- Case of the Banbury Peerage, 2 
Selw. N. P. (by Wheaton) 558; Morris 
«'. Daviee, 3 Car. & P. 613. [Tlie pre- 
sumption of the legitimacy of a ciiild of 
a married woman can only be rebutted 
by evidence wiiich proves beyond all 
reasonable doubt that her husband could 
not have been the father. Philips v. 
Allen, 2 Allen (Mass.), 453; ante, § 28.] 

3 Attorney-General v. Paruther, 3 Bro. 



C. C. 441, 443, per Lord Thurlow ; cited 
with approbation in White v. Wilson, 
13 Ves. 87, 88; Hoge v. Fisher, 1 Pet. C. 
C; 103. 

* Throgmorton v. Walton, 2 Roll. 461 ; 
Wilson V. Hodges, 2 East, 313; supra, 
§41. 

5 Crowley v. Page, 7 C. P. 790 ; Smith 
V. Davies, Id. 307 ; Clarke v. Spence, 10 
Watts, 335; Story on Bailm. §§ 454, 
457, n. (3d ed.); Brind v. Dale, 8 C. & 
P. 207. See further, as to the right to 
begin, and, of course, the burden of proof, 
Pontife.x v. Jolly, 9 C. & P. 202 ; Harnett 
V. Johnson, Id. 206 ; Aston v. Perkes, Id. 
231 ; Osborn v. Thompson, Id. 337 ; Bing- 
ham V. Stanley, Id. 374; Lambert v. Hale, 
Id. 506 ; Lees v. Hoffstadt, Id. 599 ; Chap- 
man I'. Emdcn, Id. 712; Doe i'. Rowlands, 
LI. 734; Ridgway v. Ewbank, 2 M. & 
Rob. 217; Hudson v. Brown, 8 C. & P. 
774 ; So ward v. Lcggatt, 7 C. & P. (313; 
Bowles V. Neale, Id. 262 ; Richardson v. 
Fell, 4 Dowl. 10; Silk v. Humphrey, 7 
C. & P. 14. 

* Doe V. Coombes, 3 Ad. & El. n. 8. 
687. 

T Treat v. Orono, 13 Shcpl. 217. 
8 McCrea v. Marshall, 1 La. An. 29. 



CHAP, ni.] THE BUKDEN OF PROOF. 103 

Wycr V. Dorchester, &c. Bank, itbi supra. But wliere the action is by the holder of a 
bank-bill, and the defendant proves it to have been stolen, the plaintiff is not bound 
to show how he came by the bill, to enable him to recover upon it, but the defendant, 
to defeat the plaintiff's right to recover upon it, must show that he received it under 
such circumstances as to prevent the maintenance of his action. Wyer v. Dor- 
chester, &c. Bank, uln supra; Solomons v. Bank of England, 13 East, 135, n. ; De 
la Chaumette v. Bank of England, 2 Barn. & Adolph. 385. And see post, vol. ii. 
§ 172. When goods are obtained from their owner by fraud, the burden of proof 
is upon one who claims under the fraudulent purchaser to show that he is a bona 
Jide purchaser for value. Haskins v. Warren, 115 Mass. 514. 

§ 81 b. It would seem to be the true rule in criminal cases, though there are some 
decisions to the contrary, that the burden of proof never shifts, but that it is upon 
the government throughout ; and that in all cases, before a conviction can be had, the 
jury must be satisfied, upon all the evidence, beyond a reasonable doubt, of the 
affirmative of the issue presented by the government; to wit, that the defendant is 
guilty in manner and form as charged in the indictment. The opinion of the court, 
by Bigelow, J., in the case of Commonwealth v. McKie, 1 Gray, 61-65, contains an 
acceptable and very able exposition of the general rule of law as to the burden of 
proof in criminal cases, but it is too extensive to be here inserted. 

§ 81 c. Although the above decision is carefully limited to that precise case, yet it 
would seem that its principle would cover all cases, including those in which the de- 
fendant relies on some distinct substantive ground of defence not necessarily connected 
with the transaction on which the indictment is founded, as insanity for instance. 
For in every case the issue which the government presents is the guilt of the defendant, 
and to prove this the jury must be satisfied not only that the defendant committed 
the act constituting tlie corpus delicti, but also that, at the time of the commission 
thereof, he had intelh'gence and capacity enough to have a criminal intent and pur- 
pose ; because, " if his reason and mental powers are either so deficient that he has 
no will, no conscience or controlling mental power, or if, through the overwhelming 
violence of mental disease, his intellectual power is for the time obliterated, he is 
not a responsible moral agent, and is not punishable for criminal acts." By Shaw, 
C. J., in Commonwealth v. Rogers, 7 Met. 501 ; see Commonwealth v. Hawkins, 3 
Gray, 465 ; 1 Bennett & Heard's Lead. Crim. Cas. 87, note to Commonwealth v. 
Rogers, and p. 347, note to Commonwealth v. Mclvie. And if the burden is on the 
government thus to satisfy the jury, it is difficult to see why the rule of proof beyond 
a reasonable doubt does not apply ; and why a reasonable doubt of the insanity of 
the defendant should not require the jury to acquit. 

In the more recent case of Commonwealth v. Eddy, 7 Gray, 583, which was an 
indictment against the defendant for the murder of his wife, and in which the insanity 
of the defendant was pressed to the jury as a defence, the court instructed the jury 
in substance that the burden of proof was on the government throughout, and did 
not shift; although, so far as the sanity of the defendant was concerned, the burden 
was sustained by the legal presumption that all men are sane, wliich presumption 
must stand until rebutted by proof to the contrary, satisfactory to the jury. 

Subsequently in Pomeroy's case (117 Mass. 143), although it was intimated that 
Com. V. Eddy was not a binding authority, but only the opinion of three judges, 
the court held the following language : " The burden is upon the government to 
prove every thing essential beyond reasonable doubt ; and that burden, so far as tlie 
matter of insanity is concerned, is ordinarily satisfactorily sustained by the pre- 
sumption that every person of sufficient age is of sound mind and understands the 
nature of his acts. But when the circumstances are all in, on the one side going to 
show a want of adequate capacity, on the other side going to show usual intelligence, 



104 LAW OF EVIDENCE. [PAET H. 

the burden rests, where it was in the beginning, upon the government to prove the 
case bej'ond reasonable doiibt." See also State v. Pike, 49 N. H. 395 ; State v. Jones, 
50 N. H. 370. And this perhaps is the prevailing opinion. People v. Garbutt, 17 
Mich. 9; State v. Crawford, 11 Kan. 32. But it does not seem to be accepted in 
New York (Flanagan i'. People, 52 N. Y. 407), where it is held that insanity must be 
proved by a preponderance of evidence, and it is not sutScient for the prisoner to 
raise a doubt. And the law in Pennsylvania substantially accords with that of New 
York. Lynch v. Com., 77 Pa. St. 205 ; Ortwein v. Com., 76 Pa. St. 414. The cases 
on this subject are very fully collected and stated in a note to State r. Crawford, 
Sup. Ct. Kansas, 23 Am. L. Keg. n. s. 21. And see also Wharton's Hom. § G66; 
post, vol. iii. § 5. 

Where liquors are not by law vendible without a license, the presumption that 
the defendant has no license is sufficient proof of the case for the prosecution to 
call upon the defendant to rebut it. Bliss v. Brainard, 41 N. H. 25G ; ante, § 79, n. ; 
Wheat V. State, 6 Mo. 455. On an indictment for perjury for falsely swearing to 
ownership in a certain house, it was intimated that, on proof of prior ownership by 
the wife of the defendant, tlie presumption that she continued to own it sufficiently 
proved the negative for the government. Com. v. Hatfield, 107 Mass. 227. If a pris- 
oner pleads that he was under the age of presumed capacity, the burden of proof is 
upon him. State v. Arnold, 13 Ired. (N. C.) Law, 184. In Com. v. Choate (105 Mass. 
452), it was held that where an alibi was set up, a charge to the jury that when the 
defendant wished them to take as an affirmative matter of fact proved, that he was 
at a certain place at a certain time, the burden of proof was upon him, and, if he 
failed to sustain the burden, they could not consider it as a fact proved ; but that 
the burden was upon the government to show the defendant's presence at tlie com- 
mission of the crime, and on that question they were to consider all his evidence 
tending to prove an alibi, and if on all the evidence they entertained a reasonable 
doubt as to his presence they should acquit, — was unobjectionable. But in Pennsyl- 
vania it has been held, as in the insanity cases above cited, that it is not enough 
for the defendant to raise a doubt. Fife v. Com., 29 Pa. St. 439. AVlien a party 
drives over a person in the street and kills him, and is indicted for manslaughter, 
the government need not show negligence on the part of the accused ; but, on prov- 
ing the killing, the accused may be called upon to show that he used due care. Reg. 
V. Cavendish, 8 Irish (C. L.) 178 (Ct. for Cr. Cases reserved), O'Brien, J., dissent- 
ing. In an action against a carrier for injuries resulting from his negligence, 
proof of the injury is prima facie proof of negligence, and throws on tlie carrier the 
burden of disproving it. Tennery v. Pippinger, 1 Phila. 543 ; Ware v. Gay, 11 Pick. 
(Mass.) 106. In criminal cases, where the defendant justifies, the proof of justifica- 
tion must be by a preponderance of evidence. People v. Schryver, 42 N. Y. 1. 



CHAP. IV.] THE BEST EVn)ENCE. 105 



CHAPTER IV. 

OF THE BEST EVHDENCE. 

§ 82. Best evidence required. A fourth rule, which governs in 
the production of evidence, is that wliich requires the best evi- 
dence of ivhich the case in its tiature is susceptible. This rule does 
not demand the greatest amount of evidence which can possibly 
be given of any fact ; but its design is to prevent the introduction 
of any which, from the nature of the case, supposes that better 
evidence is in the possession of the party. It is adopted for the 
prevention of fraud ; for when it is apparent that better evidence 
is withheld, it is fair to presume that the party had some sinister 
motive for not producing it, and that, if offered, his design would 
be frustrated.^ The rule thus becomes essential to the pure ad- 
ministration of justice. In requiring the production of the best 
evidence applicable to each particular fact, it is meant that no 
evidence shall be received which is merel}" substitutionary in its 
nature, so long as the original evidence can be had. The rule 
excludes only that evidence which itself indicates the existence 
of more original sources of information. But where there is no 
substitution of evidence, but only a selection of weaker, instead 
of stronger proofs, or an omission to supply all the proofs capable 
of being produced, the rule is not infringed.^ Thus, a title by 
deed must be proved by the production of the deed itself, if it is 
within the power of the party ; for this is the best evidence of 
which the case is susceptible ; and its non-production would raise 
a presumption that it contained some matter of apparent defea- 
sance. But, being produced, the execution of the deed itself may 
be proved by only one of the subscribing witnesses, though the 
other also is at hand. And even the previous examination of a 
deceased subscribing witness, if admissible on other grounds, may 

1 "Falsi prsesumptio est contra eum, on Evid. 266-278; Tayloe v. Riggs, 1 
qui testibus probare conatur id quod in- Peters, 591, 596 ; United States v. Eey- 
strumentis probare potest." Henoch, burn, 6 Peters, 352, 367 ; Minor v. Tillot- 
Consil. 422, n. 125. son, 7 Peters, 100, 101 [Shoenbergher v. 

2 Phil. & Am. on Evid. 438 ; 1 Phil. Hackman, 37 Penn. St. 887]. 
Evid. 418; 1 Stark. Evid. 437 ; Glassford 



106 LAW OF EVIDENCE. [PAET H. 

supersede the necessity of calling the survivor.^ So, in proof or 
disproof of handwriting, it is not necessary to call the supposed 
writer himself.^ And even where it is necessary to j)i'ove nega- 
tively, that an act was done without the consent, or against the 
will, of another, it is not, in general, necessary to call the person 
whose will or consent is denied.^ 

§ 83. Exceptions. All rules of evidence, however, are adopted 
fcr practical purposes in the administration of justice ; and must 
be so applied as to promote the ends for which they were designed.* 
Thus, the rule under consideration is subject to ezeejjtions, where 
the general convenience requires it. Proof, for example, that an 
individual has acted notoriously as a public officer, is prima facie 
CAddence of his official character, without producing his commis- 
sion or appointment.^ 

§ 84. Primary and secondary evidence. This rule naturally 

leads to the division of evidence into Peeniaky and Secondary. 
Primary evidence is that which we have just mentioned as the 
best evidence, or that kind of proof which, under any possible 
circumstances, affords the greatest certainty of the fact in ques- 
tion : and it is illustrated by the case of a written document ; the 
instrument itself being always regarded as the primary or best 
possible evidence of its existence and contents. If the execution 
of an instrument is to be proved, the primary evidence is the 
testimony of the subscribing witness, if there be one. Until it is 
shown that the production of the primary evidence is out of the 
party's power, no other proof of the fact is in general admitted.^ 

1 Wriglit V. Tatham, 1 Ad. & El. 3. Ad. & El. n. s. 478 ; infra, § 02. But 

[See infra, §§ 569-575.] there must be some color of rie-ht to the 

- Hughes' case, 2 East, P. C. 1002; office, or an acquiescence on tlie part of 

McGuire's case, lb.; Rex f. Benson, 2 tlie public for such lenijtli of time as will 

Campb. 508. authorize the presumption of at least a 

3 Supra, § 77; Rex v. Hazy & Colling, colorable election or appointment. Wil- 

2 C. & P. 458. cox V. Smith, 6 Wend. 201, 284. This 

< [See/'o.s', § 348; Greenwood u. Cur- rule is applied only to public offices, 

tis, 6 Mass. .358.] Where the office is private, some proof 

^ United States v. Reyburn, 6 Peters, must be offered of its existence, and of 

352, 3G7 ; Rex v. Gordon, 2 Leach, Cr. C. the appointment of the agent or incum- 

6S1, 685, 5,% ; Rex v. Shelley, Id. 381, n. ; bent. Short v. Lee, 1 Jac. & W. 464. 468. 

J;'.cob V. United States, 1 Brockenb. 520; [Where a note was indorsed by a person 

Milnor y. Tillotson, 7 Peters, 100, 101; as president of an incorporateil insurance 

Berryman i». Wise, 4 T. R. 3'>6 ; Bank of conipan.v, the indorsee may prove by 

U. States V. Dandridgo, 12 Wheat. 70; parol that he acted as president, and 

Doe V. Brawn, 5 B. & A. 243; Cannell i'. need not produce the records of the com- 

Curtis, 2 Bing. N. C. 228, 234 ; Rex v. pany to show his election. Cabot v. 

Vercist, 3 Campb. 4.32 ; Rex i-. Howard, Given, 45 Maine, 144.] 

1 M. Sc Rob. 187; McGahey i-. Alston, 2 6 Sebree v. Dorr, 'J Wheat. 558, 503; 

M. & W. 200, 211 ; Regina v. Vickery, 12 Hart v. Yunt, 1 Watts, 253. [And courts 



CHAP. IV.] 



THE BEST EVIDENCE. 



107 



All evidence falling short of this in its degree is termed secondary. 
The question, whether evidence is primary or secondary, has ref- 
erence to the nature of the case in the abstract, and not to the 
peculiar circumstances under which the party in the particular 
cause on trial may be placed. It is a distinction of law, and not 
of fact ; referring only to the quality, and not to the strength of 
the proof. Evidence which carries on its face no indication that 
better remains behind is not secondary, but primary. And 
though all information must be traced to its source, if possible, 
yet if there are several distinct sources of information of the same 
fact, it is not ordinarily necessary to show that they have all been 
exhausted, before secondary evidence can be resorted to.^ 



will be liberal in the allowance "of sec- 
ondary evidence where the paper to be 
produced is out of the jurisdiction. Then 
any evidence of its contents free from 
suspicion will be received. Binney v. 
Russell, 109 Mass. 55. As to proof that 
the original is beyond the power of the 
party offering to prove its contents, see 
■post, §§ 558, 572-574.] 

1 Cutbush c. Gilbert, 4 S. & R. 555; 
United States v. Gilbert, 2 Sumn. 19, 80, 
81 ; Fhil. & Am. on Evid. 440. 441 ; 1 
Phil. Evid. 421. Whether the law rec- 
ognizes any degrees in the various kinds 
of secondary evidence, and requires the 
part}' offering that which is deemed less 
certain and satisfactory first to show 
that nothing better is in his power, is a 
question which is not yet perfectly set- 
tled. On the one hand, the affirmative 
is urged as an equitable extension of tiie 
principle which postpones all secondary 
evidence, until the absence of the pri- 
mary is accounted for ; and it is said 
that the same reason which requires the 
production of a writing, if wi^iin the 
power of a party, also requires that, if 
the writing is lost, its contents shall be 
proved by a copy, if in existence, rather 
than by the ;nemory of a witness who 
has read it ; and that the secondary 
proof of a lost deed ought to be mar- 
shalled into, first, the counterpart ; sec- 
ondly, a copy ; thirdly, the abstract, &c. ; 
and, last ot all, the memory of a witness. 
Ludlam, ex clem. Hunt, Loffl, 362. On 
the other hand, it is said that this argu- 
ment for the extension of the rule con- 
founds all distinction between the weight 
of evidence and its legal admissibility ; 
that the rule is founded upon the nature 
of the evidence offered, and not upon its 
strength or weakness ; and that, to carry 
it to the length of establishing degrees 



in secondary evidence, as fixed rules ol 
law, would often tend to the subversion 
of justice, and always be productive of 
inconvenience. If, for example, proof 
of the existence of an abstract of a deed 
will exclude oral evidence of its con- 
tents, this proof may be withheld by 
the adverse party until the moment of 
trial, and the other side be defeated, or 
the cause be greatly delayed ; and the 
same mischief may be repeated, through 
all the different degrees of the evidence. 
It is therefore insisted, that the rule of 
exclusion ought to be restricted to such 
evidence only, as, upon its face, discloses 
the existence of better proof ; and that, 
where the evidence is not of this na- 
ture, it is to be received, notwithstand- 
ing it may be shown from other sources 
that the party might have offered that 
which was more satisfactory ; leaving 
the weight of the evidence to be judged 
of by the jury, under all the circum- 
stances of the case. See 4 Monthly Law 
Mag. 265-279. Among the cases cited 
in support of the affirmative side of the 
question, there is no one in which tliis 
particular point appears to have been 
expressly adjudged, though in several of 
them — as in Sir E. Seymour's case, 10 
Mod. 8; Villiers v. Villiers, 2 Atk. 71; 
Rowlandson v. Wainwright, 1 Nev.&Per. 
8 ; and others — it has been passingly ad- 
verted to as a famiUar doctrine of the 
law. On the otlier hand, the existence 
of any degrees in secondary evidence 
was doubted by Patterson, J., in Row- 
landson V. Wainwright ; tacitly denied 
by the same judge, in Covle v. Cole, 6 
C. & P. 359, and by Parke' J., in Rex v. 
Fursey, C. & P. 81 ; and by the court, in 
Rex 1-. Hunt et «/., 3 B. & Aid. 506; and 
expressly denied by Parke, J., in Browa 
V. Woodman, 6 C. & P. 206. See also 



108 



LAW OF EVIDENCE. 



[part n. 



§ 85. Substitution of oral for written evidence. The cases which 
most frequently call for the application of the rule now under 



Hall V. Ball, 3 Scott, N. R. 577. And in 
the more recent case of Doe d. Gilbert v. 
Koss, in the Exchequer, where proper 
notice to produce an original document 
had been given without success, it was 
held that tlie party giving the notice 
was not afterwards restricted as to the 
nature of tlie secondary evidence he 
would produce of the contents of the 
document ; and, therefore, having offered 
an attested copy of the deed in that case, 
which was inadmissible in itself for want 
of a stamp, it was lield that it was com- 
petent for him to abandon that mode of 
proof, and to resort to parol testimony, 
tliere being no degrees in secondary evi- 
dence ; for when once tlie original is ac- 
counted for, any secondary evidence 
wliatever may be resorted to by the 
party seeking to use tlie same. See Doe 
V. Ross, 8 Dowl. 389 ; s. c. 7 M. & W. 
102 ; Doe v. Jack, 1 Allen, 476, 483. The 
American doctrine, as deduced from va- 
rious autiiorities, seems to be this, — that 
if, from the nature of the case itself, it is 
manifest that a more satisfactory kind 
of secondary evidence exists, the party 
will be required to produce it ; but that, 
where the nature of the case does not of 
itself disclose tlie existence of such bet- 
ter evidence, tlie objector must not only 
prove its existence, but also must prove 
that it was known to the other party in 
season to have been produced at the 
trial. Thus, wliere the record of a con- 
viction was destroyed, oral proof of its 
existence was rejected, because the law 
required a transcript to be sent to the 
Court of Exchequer, which was better 
evidence. Hilts v. Colvin, 14 Johns. 182. 
So, a grant of letters of administration 
was presumed after proof, from the rec- 
ords of various courts, of the administra- 
tor's recognition there, and liis acts in that 
capacity. Battles v. Hollcy, 6 Greenl. 
145. And where the record books were 
burnt and mutilated, or lost, the clerk's 
docket and the journals of the judges 
have been deemed the next best evidence 
of the contents of the record. Cook v. 
Wood, 1 McCord, 139 ; Lyons v. Gregory, 
3 Hen. &, Munf. 237 ; Lowry v. Cady, 4 
Vermont, 504 ; Doe i;. Greenlee, 3 Hawks. 
281. In all these and the like cases, the 
nature of the fact to be proved plainly 
discloses the existence of some evidence 
in writing, of an official character, more 
satisfactory than mere oral proof ; and 
therefore the production of such evidence 
is demanded. Such, also, is the view 



taken by Ch. B. Gilbert. See Gilb. Evid. 
by Lofft, p. 5. See also Collins v. Maule, 

8 C. & P. 502; Everingham v. Roundell, 
2 M. & Rob. 188; Harvey v. Thomas, 
10 Watts, 63. [In Harvey v. Thorpe, 28 
Ala. 2.50, the American rule is preferred 
to the English. In Carpenter i'. Davies, 
10 Ind. 129, it is held that tliere are no 
degrees in the same class of secondary 
evidence.] But where there is no ground 
for legal presumption that better second- 
ary evidence exists, any proof is received 
which is not inadmissible by other rules 
of law ; unless the objecting party can 
show that better evidence was previously 
known to the other, and might have been 
produced ; thus subjecting him, by posi- 
tive proof, to the same imputation of 
fraud which the law itself presumes, 
when primary evidence is withheld. 
Thus, where a notarial copy was called 
for, as the best evidence of the contents 
of a lost note, the court held, that it was 
sufficient for tlie party to jirove the note 
by the best evidence actually in his power ; 
and that to require a notarial copy would 
be to demand that of the existence of 
which there was no evidence, and which 
the law would not presume was in the 
power of the party, it not being neces- 
sary that a promissory note should be pro- 
tested. Renner v. the Bank of Columbia, 

9 Wheat. 582, 587 ; Denn c. McAllister, 2 
Halst. 46, 53; United States v. Britton, 2 
Mason, 404, 408. But where it was proved 
that a copy existed of a note, he was held 
bound to prove it by the copy. 2 Mason, 
408. But if the party has" voluntarily 
destroyed the instrument, he is not al- 
lowed to prove its contents by secondary 
evidence, until he has repelled every 
inference of a fraudulent design in its 
destruction. Blade v. Noland, 12 Wend. 
178. [See also ante, § 37. And the in- 
troduction of weaker secondary evidence, 
when better might be produced, gives 
rise to unfavorable inferences. Mor- 
decai v. Beal, 8 Porter (Ala.), 529 ; Bailey 
V. McMeckle, 9 Cal. 430 ; Schoenberger 
V. Hackman, 37 Pa. St. 887.] Where 
the subscribing witness to a deed is dead, 
and his handwriting cannot be proved, 
the next best evidence is proof of the 
liandwriting of the grantor, and this 
is therefore required. Clark v. Court- 
ney, 5 Peters, 319. But in Nfiv York, 
proof of the handwriting of the witness 
himself is next demanded. Jackson v. 
Waldron, 13 Wend. 178. See infra, § 576. 
But where a deed was lost, the party 



CHAP. IV.] 



THE BEST E^TDENCE. 



109 



consideration, are those wliicli relate to the substitution of oral 
for written evidence ; and they may be arranged into three classes : 
including in the first class those instruments which the law re- 
quires should be in writing ; in the second, those contracts 
which the parties have put in writing ; and in the third, all 
other writings, the existence of which is disputed, and which are 
material to the issue. 

§ 86. Where the la-w requires written evidence. In the first p.ace, 
oral evidence cannot be substituted for any instrument which the 
law requires to be in ivriting ; such as records, public documents, 
official examinations, deeds of convej'ance of lands, wills other 
than nuncupative, promises to pay the debt of another, and other 
writings mentioned in the Statute of Frauds. In all these cases, 
the law having required that the evidence of the transaction 
should be in writing, no other proof can be substituted for that, 
as long as the writing exists, and is in the power of the party. 



claiming under it was not held bound to 
call the subscribing witnesses, unless it 
could be shown that he previousl}^ knew 
who they were. Jackson y. Vail, 7 Wend. 
125. So it was ruled by Lord Kenyon, 
in Keeling v. Ball, Peake's Evid. App. 
Ixxviii. In Gillies v. Smither, 2 Stark. 
528, this point does not seem to have 
been considered ; but the case turned 
on the state of the pleadings, and the 
want of any proof whatever that the 
bond in question was ever executed by 
the intestate. [This rule of evidence 
does not require proof of the loss of the 
primary evidence beyond possibility of 
mistake, but only to a moral certainty. 
Mr. Justice Campbell in United States 
V. Sutter, 21 How. (U. S.) 170, 175. If by 
" moral certainty " is meant, as in crim- 
inal cases, " beyond reasonable doubt," 
this case is more strict than the general 
current of tlie authorities. Reasonable 
proof, stronger or weaker, according to 
the circumstances, seems to be all that is 
required. Boulden v. Massie, 7 Wheat. 
(U. S.) 122; Minor v. Tillotson, 7 Pet. 
( U. S. ) 99 ; Wing v. Abbott, 28 Maine, 
367; Waller v. School Dist., 22 Conn. 
826; Carr v. Minner, 42 111. 179. See 
also post, § 558. In Comet v. Williams, 
20 Wall. (U. S.) 226, the court, after 
saying that they do not adopt the Eng- 
lish rule, that there are no degrees in 
secondary evidence, observe that the 
rule of exclusion or admission must be 
so applied as to promote the ends of 
justice, and guard against fraud, sur- 



prise, and imposition. The idea is sug- 
gested in a case in New York (Hubbard 
V. Russell, 24 Barb. 404), that two letters 
written at the same time to the same 
person, one being the exact counterpart 
of the other, may both be regarded as 
originals ; and wliere one is sent, and the 
other retained, that the latter may be 
given in evidence without notice to pro- 
duce the other. That might be true if 
the fact to be proved were merely the 
writing of the letters. But where, as is 
commonly the case, the point to be 
reached is the sending or receipt of the 
letter to or by another, a letter not sent 
could only be used as a copy. And if 
the letter sent was in fact a copy of that 
retained, it would, by the fact of being 
used for that purpose, become the origi- 
nal. In Durkee v. Vermont Central 
Railway, 29 Vt. 127, it is held, that, 
where a telegraphic communication is 
relied on to establish a contract, it must 
be proved as other writings are, by the 
production of the original. If that is lost, 
it may be proved by a copy if there is 
one, and, if there is not, by oral testimony 
respecting it. The original, where the 
person to whom it is sent takes the risk 
of its transmission, or is the employer of 
the telegraph, is the message delivered 
to the operator. But where the person 
sending the message takes the initiative, 
so that the telegraph is to be regarded 
as his agent, the original is the mes- 
sage actually delivered at the end of the 
line.] 



LIO 



LAW OF EVIDENCE. 



[PABT n. 



And where oaths are required to be taken in open court, where a 
record of the oath is made, or before a particular officer, whose 
duty it is to certify it ; or where an appointment to an additional 
office is required to be made and certified on the back of the 
party's former commission, — the written evidence must be pro- 
duced. ^ Even the admission of the fact by a party, unless 
Bolemnly made, as a substitute for other proof,^ does not super- 
sede direct proof of matter of record by which it is sought to 
affect him ; for the record, being produced, may be found irregu- 
lar and void, and the party might be mistaken. ^ Where, how- 
ever, the record or document appointed by law is not part of the 
fact to be proved, but is merely a collateral or subsequent memo- 
rial of the fact, such as the registry of marriages and births, and 
the like, it has not this exclusive character, but any other legal 
proof is admitted.* 

§ 87. Where parties have agreed in writing. In the Second place, 
oral proof cannot be substituted for the written evidence of any 
contract which the parties have put in writing. Here, the written 
instrument may be regarded, in some measure, as the ultimate 
fact to be proved, especially in the cases of negotiable securities ; 
and, in all cases of written contracts, the writing is tacitly agreed 
upon, by the parties themselves, as the only repository and the 
appropriate evidence of their agreement. The written contract 



1 Rex r. Hube,Peake's case, 132; Bas- 
Bett r. Marshall, 9 Mass. 312; Tripp i;. 
Garey, 7 Greenl. 266 ; 2 Stark. Evid. 570, 
671 ; Dole v. Allen, 4 Greenl. 527. [In 
an action against the selectmen of a town 
for refusing to receive the vote of the 
plaintiff, an inhabitant of the town, parol 
evidence that the plaintifTs name was on 
the voting list used at tlie election is inad- 
missible without first giving notice to pro- 
duce the list, such list being an official 
document. Harris v. Whitcomb, 4 Grav, 
433.] 

^ See supra, § 27; infra, §§ 169, 170, 
186, 204, 205. [Flemming v. Clark, 12 
Allen, Mass. 191 ; Michcner v. Lloyd, 16 
N.J. Eq. 38.] 

8 Scott I'. Clare, 3 Campb. 2.36 ; Jenner 
V. Jolliffc, Johns. <) ; Welland Canal Co. 
V. Hathaway, 8 Wend. 480; 1 Leach, Cr. 
C. 349; 2 Id. 025, 635. [The minutes of 
a clerk of a parish, never having been 
extended on the record, may be proved 
by parol, after proof of their loss. 
Wallace v. Townsend, 109 Mass. 2G3. 



Where the records of deeds are destroyed 
by fire, as was the case in Chicago, the 
inde.x book in which the deed is de- 
scribed, and the fact stated that it is 
recorded, is good evidence of the fact of 
record; and the notice which the record 
gave to all the world is not destroyed by 
the destruction of the record. Alvis v. 
Morrison, Sup. Ct. 111. Ch. L. N. Sept. 
12, 1874. And see also )>ost, § 500.] 

* Commonwealth i-. Norcross, 9 JMass. 
402; Ellis v. Ellis, 11 Mass. 92; Owings 
V. Wyant. 3 H. & McH. 393 ; 2 Stark. Evid. 
571 ; Rex v. Allison, R. &. R. 109; Head 
V. Passer, Pcake's Cas. 231. [So, where 
a grantee, at the time of receiving a deed 
of land, agreed by parol that the grantor 
might continue to exercise a right of way 
over the land, the evidence was held ad- 
missible, not because a right of way can 
be created by a parol grant, but to show 
that the grantor's subsequent possession 
of such easement commenced under a 
claim of right. Ashley v. Ashley, 4 Gray, 
199.] 



CHAP. IV.] THE BEST EVIDENCE. Ill 

is not collatercal, but is of the very essence of the transaction.^ 
If, for example, an action is brought for use and occupation of 
real estate, and it appears by the plaintiff's own showing that 
there was a written contract of tenancy, he must produce it, or 
account for its absence ; though, if he were to make out a prima 
facie case, without any appearance of a written contract, the 
burden of producing it, or at least of proving its existence, would 
be devolved on the defendant.^ But if the fact of the occupa- 
tion of land is alone in issue without respect to the terms of the 
tenancy, this fact may be proved by any competent oral testi- 
mony, such as payment of rent, or declarations of the tenant, 
notwithstanding it appears that the occupancy was under an 
agreement in writing ; for here the wi'iting is only collateral to 
the fact in question.^ The same rule applies to every other 
species of written contract. Thus, where, in a suit for the price 
of labor performed, it appears that the work was commenced 
under an agreement in writing, the agreement must be produced ; 
and even if the claim be for extra work, the plaintiff must still 
produce the written agreement ; for it may furnish evidence, not 
only that the work was over and beyond the original contract, but 
also of the rate at which it was to be paid for. So, in an indict- 
ment for feloniously setting fire to a house, to defraud the in- 
surers, the policy itself is the appropriate evidence of the fact of 
insurance, and must be produced.^ And the recorded resolution 

1 The principles on which a writing is sentences, judgments, edicts, ordinances, 

deemed part of the essence of any trans- and other matters which either confer 

action, and consequently the best or pri- title or have the force of law. The 

mary proof of it, are thus explained by writing preserves, unchanged, the mat- 

Domat : "The force of written proof con- ters intrusted to it, and expresses the 

sists in this, — men agree to preserve by intention of the parties by their own 

writing the remembrance of past events, testimony. Tiie truth of written acts is 

of which they wish to create a memorial, established by the acts themselves ; tliat 

either with a' view of laying down a rule is, by the inspection of the originals." 

fortheirown guidance, orinordertohave, See Domat's Civil Law, liv. 3, tit. 6, 

in the instrument, a lasting proof of the § 2, as translated in 7 Monthly Law 

truth of what is written. Tluis contracts Mag. p. 73. 

are written, in order to preserve the me- ^ Brewer v. Palmer, 3 Esp. 213, con- 

morial of what the contracting parties firmed in Ramsbottom?;. Tunbridge, 2M. 

have prescribed for each other to do. and & S. 434 ; Kex v. Kawden, 8 B. & C. 708 ; 

to make for themselves a fi.xed and im- Strother v. Barr, 5 Ring. 136, per Parke, 

mutable law, as to what has been agreed J. [Magnay v. Knight, 1 M. & Gr. 1)41]. 
on. So, testaments are written, in order ^ Bex v. Inhabitants of Holy Trinity, 

to preserve the remembrance of what tlie 7 B. & C. 611; Poe v. Harvey, 8 Bing. 

party who has a riglit to dispose of his 239, 241 ; Spiers v. Willison, 4 Cranch, 

property has ordained concerning it, and 398; Dennet v. Crocker, 8 Greenl. 239, 

thereby lay down a rule for tlie guidance 244. 

of his heirs and legatees. On the same * Rex v. Doran, 1 Esp. 127; Rex v. 

principle are reduced into writing all Gilson, Russ. & Ky. 138. 



112 LAW OF EVIDENCE. [PAET H. 

of a charitable society, under which the plaintiff earned the salary 
sued for, was on the same principle held indispensably necessary 
to be produced.^ The fact that in such cases the writing is in 
the possession of the adverse party does not change its character : 
it is still the primary evidence of the contract ; and its absence 
must be accounted for by notice to the other party to produce it, 
or in some other legal mode, before secondary evidence of its 
contents can be received.^ 

§ 88. "Where existence of writing is disputed. In the third place, 
oral evidence cannot be substituted for any writing, the existence 
of ivhich is disputed, and which is material either to the issue 
letiveen the parties, or to the credit of witnesses, and is not merely 
the memorandum of some other fact. For, by applpng the rule 
to such cases, the court acquires a knowledge of the whole con- 
tents of the instrument, which may have a different effect fi'om 
the statement of a part.^ " I have always," said Lord Tenterden, 
" acted most strictly on the rule, that what is in writing shall 
only be proved by the writing itself. My experience has taught 
me the extreme danger of relying on the recollection of witnesses, 
however honest, as to the contents of written instruments; they 
may be so easily mistaken, that I think the purposes of justice 
require the strict enforcement of the rule."'^ Thus, it is not 
allowed, on cross-examination, in the statement of a question to 
a witness, to represent the contents of a letter, and to ask the 
witness whether he wrote a letter to any person with such con- 
tents, or contents to the like effect, without having first shown 
the letter to the -^vitness, and having asked him whether he wrote 
that letter; because, if it were otherwise, the cross-examining 
counsel might put the court in possession of only a part of the 
contents of a paper, when a knowledge of the whole was essential 
to a right judgment in the cause. If the witness acknowledges 
the writing of the letter, yet he cannot be questioned as to its 
contents, but the letter itself must be read.^ And if a witness 

1 Whitford v. Tutin et ah, 10 Bing. 395 ; evidence after tlie other side has proved 
Molton V. Harris, 2 Esp. 549. its contents. Doon v. Donaper, 113 Mass. 

2 See further, Kex v. Rawden, 8 B. & 151.] 

C. 708 ; Sebree v. Dorr, 9 Wheat. 658 ; » go held by all the jud^jcs in the 

Bullock V. Koon,9 Cowen,30; Mather i». Queen's case, 2 Brod. & Bing. 287. See 

Goddard, 7 Conn. 304 ; Rank v. Sliewey, also Phil. & Am. on Evid. 441 ; 1 Phil. 

4 Watts, 218; Northrup v. Jackson, 13 Evid. 422. 

Wend. 86 ; Vina! v. Bnrrill, 16 Pick. 401, « Vincent v. Cole, 1 M. & M. 258. 

407, 408 ; Lanau/e v. Palmer, 1 M. & M. » The Queen's case, 2 B. & B. 287 ; 

81. [A paper that one party has refused infra, § 463. 
to produce on notice, he cannot put iu 



CHAP. IV.] THE BEST EVIDENCE. 113 

being examined in a foreign country, upon interrogatories sent 
out with a commission for that purpose, should in one of his 
answers state the contents of a letter which is not produced, that 
part of the deposition will be suppressed, notwithstanding, he 
being out of the jurisdiction, there maybe no means of compelling 
him to produce the letter.^ 

§ 89. Collateral writings. In cases, however, where the written 
communication or agreement between the parties is collateral to 
the question in issue, it need not be produced; as, where the 
writing is a mere proposal, which has not been acted upon ; ^ or, 
where a written memorandum was made of the terms of the con- 
tract, which was read in the presence of the parties, but never 
signed, or proposed to be signed ; ^ or, where, during an employ- 
ment under a written contract, a separate verbal order is given ; * 
or, where the action is not directly upon the agreement, for non- 
performance of it, but is in tort, for the conversion or detention 
of the document itself ; ^ or, where the action is for the plaintiff 's 
share of money had and received by the defendant, under a written 
security for a debt due to them both.^ 

§ 90. In other cases admissible. But where the writing does 
not fall within either of the three classes already described, there 
is no ground for its excluding oral evidence. As, for example, if 
a written communication be accompanied by a verbal one, to the 
same effect, the latter may be received as independent evidence, 
though not to prove the contents of the writing, nor as a sub- 
stitute for it. Thus, also, the payment of money may be proved 
by oral testimony, though a receipt be taken ; ''' in trover, a verbal 
demand of the goods is admissible, though a demand in writing 
was made at the same time ; ^ the admission of indebtment is 

1 Steinkeller v. Newton, 9 C. & P. 313. v. Holbrook, 13 Johns. 90 ; McLean v. 

2 Ingram v. Lea, 2 Campb. 521 ; Rams- Hertzog, 6 S. & R. 154. 

bottom V. Tunbridge, 2 M. & S. 4-34 ; Ste- 6 Bayne v. Stone, 4 Esp. 13. See 

phens V. Pinnev, 8 Taunt. 327; Doe v. Tucker v. Welsh, 17 Mass. 165; Mc- 

Cartwright, .3 B. & A. 826; Wilson v. Fadden v. Kingsbury, 11 Wend. 6(57; 

Bowie, 1 C. & P. 8 ; Hawkins v. Warre, 3 Soutliwick v. Stephens, 10 Johns. 443. 

B. & C. 690. [AVhere a writing docs not purport to 

3 Truwhitt v. Lambert, 10 Ad. & El. contain the entire contract between par- 
470. ties, additional terms may be shown by 

4 Reid V. Battie, M. & M. 413 [Parton parol. Webster v. Hodgkins, 5 Foster, 
V. Cole, 6 Jur. B. C. 370]. (N. H.) 128.] 

5 Jollevf. Taylor, 1 Campb. 143; Scott ^ Rambert i'. Cowen, 3 Esp. 213; Ja- 
V. Jones, 8 Taunt. 805 ; How v. Hall, 14 cob v. Lindsav, 1 East, 4G0; Doe v. Cart- 
East, 274 ; Bucher v. Jarratt, 3 B. & P. wright, 3 B. & A. 326. 

143; Whitehead v. Scott, 1 ^l. & Rob. 2 ; 8 gmith v. Young, 4 Campb. 439. 

Ross V. Bruce, 1 Day, 100 ; The People 
VOL. I. 8 



114 LAW OF EVIDENCE. [PAET H. 

provable by oral testimony, though a written promise to pay was 
simultaneously given, if the paper be inadmissible for want of a 
stamp. 1 Such, also, is the case of the examination and confession 
of a prisoner, taken down in writing by the magistrate, but not 
signed and certified pursuant to the statutes.^ And any writing 
inadmissible for the want of a stamp^ or other irregularity, may stUl 
be used by the witness who wrote it, or was present at the time, 
as a memorandum to refresh his own memory, from which alone 
he is supposed to testify, independently of the written paper.^ 
In like manner, in prosecutions for political offences, such as 
treason, conspiracy, and sedition, the inscription on flags and 
banners paraded in public, and the contents of resolutions read 
at a public meeting, may be proved as of the nature of speeches, 
by oral testimony ; * and in the case of printed papers^ all the 
impressions are regarded as originals, and are evidence against 
the person who adopts the printing by taking away copies.^ 

§ 91. Exceptions. — Public books. The rule rejecting secondary 
evidence is subject to some exceptions ; grounded either on public 
convenience, or on the nature of the facts to be proved. Thus, 
the contents of any record of a judicial court, and of entries in 
any other public books or registers, may be proved by an examined 
copy. This exception extends to all records and entries of a 
public nature, in books required by law to be kept ; and is ad- 
mitted because of the inconvenience to the public which the 
removal of such documents might occasion, especially if they 
were wanted in two places at the same time ; and also, because 
of the public character of the facts they contain, and the conse 
quent facility of detection of any fraud or error in the copy.® 

1 Singleton v. Barrett, 2 Cr. & Jer. 368. in chancery, wliere tlie party is indicted 

2 Lanibe's case, 2 Leach, 625; Rex v. for perjury therein ; for there tlie original 
Chappei, 1 M. & Rob. oOo, 39(5, n. ; 2 i'iiil. must be produced, in order to iik-iitify tbe 
Evid. Hi, 82 ; Roscoo's Crim. Evid. 40, 47. party, by proof of liis Jiandwritinj^. Tiie 

'^ Dalison i\ Stark, 4 Esp. 163; Jacob same reason applies to depositions and 

f. Lind.sa}-, 1 East, 460; Maugham i\ Hub- affidavits. Rex r. Howard,! M. & Rob. 

bard, 8 B. & C. 14; Rex v. Tarrant, G C. 180. [A registry copy of a deeil of land 

& P. 182; Rex v. I'ressly, Id. 183; Lay- is not admissible in evidence against the 

er's case. 10 Howell's St. Tr. 223; infra, grantee, wititout notice to liim to i)roduce 

§§ 228, 430. tlie original, tlie original being presumed 

* Rex V. Hnr.t, 3 B. & A. 566; Sheri- to be in liis possession. Commonwealth 

dan & Kirwan's case, 31 Howell's St. Tr. v. Emery, 2 Gray, 80. i' Wliere tlie origi- 

672. nals are not presumed to be in tlie pos- 

^ Rex V. AVatson, 2 Stark. 129, 130. session of eitlier party to the suit, office 

[See also 7»o.'^^ § '.(7, n.] copies of deeds areadmissible. Blanciiard 

e Bull. N. P. 220; 1 Stark. Evid. 189, v. Young, 11 Cush. :!45. See also Palmer 

191. [See also />os^§§ 484, 509.) But this v. Stevens, lb. 147. As to notice to 

exception does not extend to an answer produce, see post, § 560.] 



U 



CHAP. lY.] 



THE BEST EVIDENCE. 



115 



§ 92. "Written appointments to offices. For the same reasons, and 
from the strong presumption arising, from the undisturbed exer- 
cise of a public office, that the appointment to it is valid, it is not, 
in general, necessary to prove the written appointments of public 
officers. All who are proved to have acted as such are presumed 
to have been duly appointed to the office, until the contrary ap- 
pears ; ^ and it is not material how the question arises, whether in 
a civil or criminal case, nor whether the officer is or is not a party 
to the record ; ^ unless, being plaintiff, he unnecessarily avers his 
title to the office, or the mode of his appointment ; in which case, 
as has been already shown, the proof must support the entire 
allegation.^ These and similar exceptions are also admitted, as 
not being witliin the reason of the rule, which calls for primary 
evidence ; namely, the presumption of fraud, arising from its non- 
production. 

§ 93. Voluminous facts. A further relaxation of the rule has 
been admitted, where the e"\ddence is the result of voluminous 
facts, or of the inspection of many books and papers, the exami- 
nation of which could not conveniently take place in court.* 



^ An officer de facto is one who exer- 
cises an office under color of right, by vir- 
tue of some appointment or election, or 
of such acquiescence of tlie public as will 
authorize the presumption, at least, of a 
colorable appointment or election; being 
distinguished, on the one hand, from a 
mere usurper of office, and on the other 
from an officer dejiire. AVilcox v. Smith, 
5 Wend. 231 ; Plymouth v. Painter, 17 
Conn. 585 ; Burke v. Elliott, 4 Ired. 355. 
Proof that a person is reported to be and 
has acted as a public officer is prima facie 
evidence, between third persons, of his 
official character. McCoy i'. Curtice, 9 
"Wend. 17. And to this end evidence is 
admissible, not only to show that he exer- 
cised the office before or at the period in 
question, but also, limited to a reasonable 
time, that he exercised it afterwards. 
Doe V. Young, 8 Ad. & El. n. s. 63. And 
see supra, § 83. [Cabot v. Given, 45 
Maine, 44.] 

2 Rex V. Gordon, 2 Leach's C. C. 581 ; 
Berryman ?;. Wise, 4 T. K. 366 ; McGa- 
hey V. Alston, 2 ]\Iees. & Wels. 206, 211 ; 
Eadford v. Mcintosh, 3 T. R. 632 ; Cross 
V. Kaye, 6 T. R. 663 ; James v. Brawn, 5 
B. & A. 243; Rex v. Jones, 2 Campb. 
131 ; Rex v. Verelst, 3 Campb. 432. 
A commissioner appointed to take affi- 
davits is a public officer, within this ex- 
ception. Rex V. Howard, 1 M. & Rob. 



187. See supra, § 83; United States v. 
Reyburn, 6 Peters, 352, 367; Regina 
V. is^ewton, 1 Car. & Kir. 369; Doe v. 
Barnes, 10 Jur. 520; 8 Ad. & El. n. s. 
1037 ; Plumer v. Briscoe, 12 Jur. 351 ; 11 
Ad. & El. N. 8. 46 ; Doe i'. Young, 8 Ad. 
& El. N. s. 63. 

3 Supra, § 56 ; Cannell v. Curtis, 2 
Bing. N. C. 228 ; Moises v. Thornton, 8 T. 
R. 303 ; The People v. Hopson, 1 Denio, 
574. In an action by the sheriff for his 
poundage, proof that he lias acted as 
sheriff has been held sufficient prima facie 
evidence that he is so, without proof of 
his appointment. Bunbury v. Matthews, 
1 Car. & Kir. 380. But in New York it 
has been held otherwise. The People v. 
Hopson, supra. 

i Phil. & Am. on Evid. 445 ; 1 Phil. 
Evid. 433, 434. The rules of pleading 
have, for a similar reason, been made to 
yield to public convenience in the admin- 
istration of justice ; and a general allega- 
tion is ordinarily allowed, " when the 
matters to be pleaded tend to infiniteness 
and multiplicity, whereby the rolls shall 
be incumbered with the length thereof." 
Mints V. Bethil, Cro. Eliz. 749; Stephens 
on Pleading, 359, 360. Courts of equity 
admit the same exception in regard to 
parties to bills, where they are numer- 
ous, on the like grounds of convenience. 
Story on Eq. PI. 94, 95, et seq. 



116 



LAW OF EVIDENCE. 



[PAUT n. 



Thus, if there be one invariable mode in which bills of exchange 
have been drawn between particular parties, this may be proved 
by the testimony of a witness conversant with their habit of 
business, and speaking generally of the fact, without producing 
the bills. But if the mode of dealing has not been uniform, the 
case does not fall within this exception, but is governed by the 
rule requiring the production of the writings.^ So, also, a wit- 
ness who has inspected the accounts of the parties, though he 
may not give evidence of their particular contents, may be allowed 
to speak to the general balance, without producing the accounts.^ 
And where the question is upon the solvency of a party at a par- 
ticular time, the general result of an examination of his books 
and securities may be stated in like manner.^ 

§ 94. Inscriptions. Under this head may be mentioned the case 
of inscriptions on walls and fixed tables, mural monuments, grave- 
stones, surveyors'' marks on boundary trees, &c., which, as they 
cannot conveniently be produced in court, may be proved by 
secondary evidence.* 

§ 95. Preliminary inquiries. Another exception is made, in the 
examination of a witness on the voir dire, and in preliminary in- 
quiries of the same nature. If, upon such examination, the wit- 
ness discloses the existence of a written instrument affecting his 



^ Spencer v. Billing, 3 Campb. 310. 

2 Roberts v. Doxon, Peakc's Cas. 83. 
But not as to particular facts appearing 
on the books, or dctlucible from the 
entries. Dupuy v. Truman, 2 Y. & C. 
341. [And he may refer to other ac- 
counts to refresli lils recollection, on 
beiug required to give the items of a 
long account. Alleglieny Ins. Co. v. 
Hanlon, Suj). Ct. Ta. Leg. Int. 1874, p. 
372; post, § 4.3G.1 

8 Meyer v. Sefton, 2 Stark. 274. [So 
negatively it may be shown that such 
books do not contain (certain entries, for 
the purpose of showing that A never lent 
money to a bank, the books being out of 
the jurisdiction. Burton i'. Driggs, U. S. 
Sup. Ct. 1875, 7 Leg. Gaz. 1. But a wit- 
ness cannot be allowed to state his im- 
pression of tlie friendly or unfriendly re- 
lation of y)arties to each other from the 
perusal of letters which passed between 
them, but which have been destroyed. 
Topliam V. McGregor, 1 C. & K. 320. 
When books and documents introiliiced 
in evidence at the trial are multifarious 
and voluminous, and of such a character 
as to render it difficult for the jury to com- 



prehend material facts, without schedules 
containing abstracts thereof, it is within 
the discretion of the presiding judge to 
admit such schedules, verified by the 
testimony of the person by whom they 
were prepared, allowing the adverse party 
an opportunity to examine them before 
tiie case is submitted to the jury. Boston 
& W. R. R. Corp. V. Dana, 1 Gray, 8-3, 104. 
See also Holbrook v. Jackson, 7 Cush. 
136.1 

* Doe V. Coyle, 6 C. & P. 300 ; Rex v. 
Fursev, Id. 81 ; [Mortimer v. McCallan, 
6 M. & W. 08, 72 ; Bruce v. Nicolopolo, 
11 Exch. 129. So if the instruments of 
evidence are in a foreign jurisdiction. 
Crispin v. l)oglioni,32 L. J. P. & M. 129; 
Boyle V. Wiseman, 10 Ex. 047]. But, if 
they can conveniently be brought into 
court, their actual jiroduction is required. 
Thus, where it was pro])osed to show the 
contents of a printed notice, hung up in 
the office of the party, who was a carrier, 
parol evidence of its contents was re- 
jected, it not being affixed to tlie free- 
liold. Jones v. Tarlton, 1 D. P. C. n s. 
G25. 



CHAP, rv.] THE BEST EVIDENCE. 117 

competency, lie may also be interrogated as to its contents. To 
a case of this kind, the general rule requiring the production of 
the instrument, or notice to produce it, does not apply ; for the 
objecting party may have been ignorant of its existence, until it 
was disclosed by the witness ; nor could he be supposed to know 
that such a witness would be produced. So, for the like reason, 
if the witness, on the voir dire, admits any other fact going to 
render him incompetent, the effect of which has been subsequently 
removed by a written document, or even a record, he may speak 
to the contents of such writing, without producing it ; the rule 
being that where the objection arises on the voir dire, it may be 
removed on the voir dire.^ If, however, the witness produces 
the writing, it must be read, being the best evidence.^ 

§ 96. Admissions. It may be proper, in this place, to consider 
the question, whether a verbal admission of the contents of a ivrit- 
ing, by the party himself, will supersede the necessity of giving 
notice to produce it ; or, in other words, whether such admission, 
being made against the party's own interest, can be used, as 
primary evidence of the contents of the writing, against him and 
those claiming under him. Upon this question, there appears 
some discrepancy in the authorities at Msi Prius.^ But it is to 
be observed, that there is a material difference between proving 
the execution of an attested instrument, when produced, and 
proving the party's admission that by a written instrument, 
which is not produced, a certain act was done. In the former 
case, the law is well settled, as we shall hereafter show, that 
when an attested instrument is in court, and its execution is to 
be proved against a hostile party, an admission on his part, unless 
made with a view to the trial of that cause, is not sufficient. 
This rule is founded on reasons peculiar to the class of cases to 

1 Phil. iSb Am. on Evid. 149 ; 1 Phil, the rule, and not within the exception, 
Evid. 154, 155; Butchers' Co. v. Jones, 1 and that the writing which restores the 
Esp. 160; Botham v. Swingler, Id. 164; competency must be produced. See ace. 
Hex V. Gisburn, 15 East, 57 ; Carlisle v. Goodhay v. Hendry, 1 M. & M. 319, per 
Eady, 1 C. & P. 234, n. ; Miller v. Mar- Best, C. J., and Id. .321, n., per Tindall, 
iners' Church, 7 Greenl. 51; Sewell v. C.J. But see Carlisle r. Eady, 1 C. & P. 
Stubbs, 1 C. & P. 73. 234, per Parke, J. ; Wandless v. Caw- 

2 Butler V. Carver, 2 Stark. 434. A thorne, 1 M. & M. 321, n., per Parke, J., 
distinction has been taken between cases, contra. See 1 Phil. Evid. 154, 155. 
where the competency appears from the ^ phil. & Am. on Evid. 363, 364 ; 1 
examination of the witness, and those Phil. Evid. 346, 347. See the Monthly 
where it is already apparent from the rec- Law Magazine, vol. v. p. 175-187, where 
ord, without his examination ; and it has this point is distinctly treated. 

been held, that the latter case falls within 



118 LAW OF EVIDENCE. [PART H. 

•which it is applied. A distinction is also to be observed between 
a confessio juris and a confessiofacti. If the admission is of the 
former nature, it falls within the rule already considered, and is 
not received ; ^ for the party may not know the legal effect of the 
instrument, and his admission of its nature and effect may be ex- 
ceedingly erroneous. But where the existence, and not the formal 
execution, of a writing is the subject of inquiry, or where the 
writing is collateral to the principal facts, and it is on these facts 
that the claim is founded, the better opinion seems to be t]iat 
the confession of the party, precisely identified, is admissible as 
primary evidence of the facts recited in the writing ; though it is 
less satisfactory than the writing itself.^ Very great weight 
ought not to be attached to evidence of what a party has been 
supposed to have said ; as it frequently happens, not only that 
the witness has misunderstood what the party said, but that, by 
unintentionally altering a few of the expressions really used, he 
gives an effect to the statement completely at variance with 
what the party actually did say.^ Upon this distinction the ad- 
judged cases seem chiefly to turn. Thus, where, in an action by 
the assignees of a bankrupt for infringing a patent-right standing 
in his name, the defendant proposed to prove the oral declaration 
of the bankrupt that by certain deeds an interest in the patent- 
right had been conveyed by him to a stranger, the evidence was 
properly rejected ; for it involved an opinion of the party upon 
the legal effect of the deeds.* On the other hand, it has been 
held that the fact of the tenancy of an estate, or that one person, 
at a certain time, occupied it as the tenant of a certain other per- 
son, may be proved by oral testimony. But if the terms of the 

1 Supra, § 86; Moore v. Hitchcock, 4 Smith v. Palmer, 6 Cush. 515 [Slatterie 

Wend. 2(i2, 298, 299; Paine !). Tucker, 8 v. Pooley, 6 Mees. & Wels. (iG4. See 

Siiepl. 138. [In an action on a written infra, § 205]. 

contract, wliich is put in evidence, the ^ Per Parke, J., in Earle v. Pickcn, 5 

plaintiHcannot introduce tlic oral declara- C. & P. 542, n. See also 1 Stark. Evid. 

tions of tlie defendant as to ids supposed 35, 36; 2 Stark. Evid. 17 ; in/'ra, §§ 200, 

liability; since, if tlie declaratiotis varied 203; Ph.& Am. on Evid. 391,392; IPhil. 

the terms of the written contract, they Evid. 372. 

were not competent testimony ; if tliey * Bloxam v. Elsee, 1 C. «& P. 558 ; 8. c. 

did not, they were immaterial. Goodell Ry. & M. 187. See, to the same point, 

V. Smith, 9 Cush. 592. Evidence that Hex v. Hube, Peake's Cas. 132 ; Tiiomas 

the party souj^lit to be charged handed v. Ansley, 6 Esp. 80; Scott v. Clare, 3 

the original to a third party to be copied, Campb. 236; Hex v. Careinion, 8 East, 

is sufficient proof of the genuineness of 77; Harrison v. More, Phil. & Am. on 



the original. Kreise v. Neason, 66 Pa. Evid. 305, n. ; 1 Phjl- Evid. 347, n. ; JRex 
' . 2o.';. See alio )>ost, § 558, n.| v. Inhal ----- _ _ . 

2 Howard v. Smith, 3 Scott, N. R. 574 ; A. 688. 



St. 2o.';. See alio )>ost, § 558, n.] v. Inhabitants of Castle Morton, 3 B. & 

t, N. " 



CHAP. IV.] 



THE BEST EVIDENCE. 



119 



contract are in controversy, and they are contained in a jvriting, 
the instrument itself mnst be produced,^ 

§ 97. Admissions. There is a class of cases, which seem to be 
exceptions to this rule, and to favor the doctrine that oral dec- 
larations of a party to an instrument, as to its contents or effect, 
may be shown as a substitute for direct proof by the writing 
itself. But these cases stand on a different principle, namely, 
that where the admission involves the material fact in pais, as well 
as a matter of law, the latter shall not operate to exclude evidence 
of the fact from the jury. It is merely placed in the same pre- 
dicament with mixed questions of law and fact, wliich are always 
left to the jury, under the advice and instructions of the court.^ 
Thus, where the plaintiff, in ejectment, had verbally declared 
that he had " sold the lease," under wliich he claimed title, to a 
stranger, evidence of this declaration was admitted against him.3 
It involved the fact of the making of an instrument called an 
assignment of the lease, and of the delivery of it to the assignee, 
as well as the legal effect of the writing. So, also, similar proof 
has been received, that the party was " possessed of a lease- 
hold;""^ " held a note," ^ " had dissolved a partnership," which 
was created by deed ; ^ and that the indorser of a dishonored 
bill of exchange admitted, that it had been " duly protested." ^ 



1 Brewer v. Palmer, 3 Esp. 213 ; Rex 
V. Inhabitants of Holy Trinity, 7 B. & C. 
611 ; s. c. 1 Man. & Ily. 444; Strother v. 
Barr, 5 Bing. 136 ; Ramsbottom v. Tun- 
bridge, 2 M. & S. 434. [Notwithstanding 
the decision in Slatterie v. Pooley, 6 M. 
& W. 664, that the admission of a party 
is always receivable against him, although 
it relate to the contents of a deed, or other 
written instrument, and even though its 
contents be directly in issue in the case, 
the proposition seems not to have met 
with universal acquiescence. The Irish 
courts dissent from it. Lawless v. Queale, 
8 Ir. Law, 382 ; Lord Gosford v. Robb, 
Id. 217; Parsons v. Purcell, 12 Id. 90. 
And the New York courts adopt a dif- 
ferent view. Jeuner v. Joliffe, 6 Johns. 
9; Hasbrouck v. Baker, 10 Id. 248; 
Welland Canal v. Hatliaway, 8 Wendell, 
480. And there is no restriction to in- 
quiries, upon cross-examination, in regard 
to writings, and facts evidenced by writ- 
ings; and the rule extends to the party 
who is a witness in support of his own 
case ; and lie may be asked, with a view 
to discredit him, if he did not in a similar 
Buit in an inferior court give evidence 



before the jury in support of his defence, 
and whether a verdict was not rendered 
against him, without producing any record 
in the action. Henman v. Lester, 12 C. 
B. N. s. 776 ; s. c. 9 Jur. n. s. 601. And 
the doctrine of Slatterie v. Pooley is 
approved in Massaclmsetts in recent 
cases. Loomis v. Wadliams, 8 Gray, 
657 ; Smith v. Palmer, 6 Cush. 520. And 
see also post, §§ 202, 203 ; Taylor, Ev. 
§§ 381-384.] 

2 United States v. Battiste, 2 Sumn. 
240. And see Newton v. Belcher, 12 Ad. 
& El. N. 8. 921. 

3 Doe d. Lowden v. Watson, 2 Stark. 
230. 

4 Digby V. Steele, 3 Campb. 115. 
8 Sewell V. Stubbs, 1 C. & P. 73. 

6 Doe d. Waithman v. Miles, 1 Stark. 
181 ; 4 Campb. 375. 

7 Gibbons V. Coggon, 2 Campb. 188. 
Whether an admission of the counterfeit 
character of a bank-note, which the party 
had passed, is sufficient evidence of the 
fact, without producing the note, quare; 
and see Commonwealth v. Bigelow, 8 
Met. 235. 



120 



LAW OF EVIDENCE. 



[PAUT n. 



What the party has stated in his answer in Chancery is admissi- 
ble on other grounds ; namely, that it is a solemn declaration 
under oath in a judicial proceeding, and that the legal effect of 
the instrument is stated under the advice of counsel learned in 
the law. So, also, where both the existence and the legal effect 
of one deed are recited in another, the solemnity of the act, and 
the usual aid of counsel, take the case out of the reason of the 
general rule, and justify the admission of such recital, as satis- 
factory evidence of the legal effect of the instrument, as well as 
conclusive proof of its execution.^ There are other cases wbich 
may seem, at first view, to constitute exceptions to the present 
rule, but in wliich the declarations of the party were admissible, 
either as contemporaneous with the act done, and expounding its 
character, thus being part of the res gestce ; or, as establishing a 
collateral fact, independent of the written instrument. Of this 
sort was the declaration of a bankrupt, upon his return to his 
house, that he had been absent in order to avoid a writ issued 
against him ; ^ the oral acknowledgment of a debt for which an 
unstamped note had been given ; ^ and the oral admission of the 
party, that he was in fact a member of a society created by deed, 
and had done certain acts in that capacity.* 



1 Ash more v. Hardy, 7 C. & P. 501 ; 
Digbv V. Steele, 3 Canipb. 115 ; Burleigh 
V. Stibbs, 5 T. R. 465; West v. Davis, 7 
East, 363; Paul v. Meek, 2 Y. & J. 116; 
Breton v. Cope, Peake's Cas. 30. [As to 
answers in Chancery, see infra, § 260, and 
8 Grcenl. Evid. §§ 280, 290 ;' as to recitals 
in deeds, see suprn, § 23, n.J 

2 Newman v. Stretch, 1 M. & M. 338. 

3 Singleton r. Barrett, 2 C. & J. .368. 

* Alderson c. Clay. 1 Stark. 405 ; 
Harvey v. Kay, 9 B. & C. .356. [Whether 
the entries in a broker's books, or the 
bought and sold notes, are tiie primary 
evidence of a contract, seems to be a 
matter of difli-rence of opinion. Sieve- 
wriffht V. Arcliibald, 17 Q. B. 115, 124, 
holds the former to be the primary evi- 



dence ; while Durell r. Evans, 1 H. & C. 
174, s. c. 31 L. J. Ex. 337, holds tliat the 
latter are. See also Taylor, Ev. §§ 390- 
393. A duplicate of a notarial instrument 
made out from the original in the notarial 
book is equivalent to the original. Gera- 
lopulo V. Wider, 10 C. B. 712. Deeds exe- 
cuted in duplicate by all the parties are 
all originals. Colling v. Trcmeck, G B. & 
C. 398 ; Brown i;. Woodman, G C. & P. 
20G. Where, however, each part is exe- 
cuted by only one of the parties, each is 
the best evidence against the party exe- 
cuting it, and secondary evidence of the 
contents of the other part. Roe i*. Davis, 
7 East, 363 ; Houghton v. Koenig, 18 C. 
B. 235; Mann v. Godbold, 3 Bing. 292. 
See also ante, § 91.] 



*... 



CHAP, v.] HEABSAY. 121 



CHAPTER V. 

OF HEARSAY. 

§ 98. Direct and hearsay evidence. The first degree of morai 
evidence, and that which is most satisfactory to the mind, is 
afforded by our own senses ; this being direct evidence of the 
highest nature. Where this cannot be had, as is generally the 
case in the proof of facts by oral testimony, the law requires 
the next best evidence ; namely, the testimony of those who can 
speak from their own personal knowledge. It is not requisite 
that the witness should have personal knowledge of the main fact 
in controversy ; for this may not be provable by direct testimony, 
but only by inference from other facts shown to exist. But it is 
requisite, that, whatever facts the witness may speak to, he should 
be confined to those lying in his own knowledge, whether they be 
things said or done, and should not testify from information 
given by others, however worthy of credit they may be. For it 
is found indispensable, as a test of truth and to the proper 
administration of justice, that every living witness should, if pos- 
sible, be subjected to the ordeal of a cross-examination, that it 
may appear what were his powers of perception, his opportunities 
for observation, his attentiveness in observing, the strength of his 
recollection, and his disposition to speak the truth. But testi- 
mony from the relation of third persons, even where the inform- 
ant is known, cannot be subjected to this test ; nor is it often 
possible to ascertain through whom, or how many persons, the 
narrative has been transmitted from the original witness of the 
fact. It is this which constitutes that sort of second-hand evi- 
dence termed " hearsay." 

§ 99. Hearsay. The term hearsay is used with reference to 
that which is written, as well as to that which is spoken ; and, in 
its leo-al sense, it denotes that kind of evidence which does not 
derive its value solely from the credit to be given to the witness 
himself, but rests also, in part, on the veracity and competency 
of some other person.^ Hearsay evidence, as thus described, is 

1 1 Phil. Evid. 185 [Sussex Peerage case, 11 CI. & Fin. 85, 113; Stapylton v. 
Glough, 22 Eng. Law & Eq. 276]. 



122 LAW OF EVrDENCE. [PART H. 

uniformly held incompetent to establish any sj^ecijic fact, which, 
in its nature, is susceptible of being proved by witnesses who 
can speak from their own knowledge. That this species of testi- 
mony supposes something better, which might be adduced in the 
particular case, is not the sole ground of its exclusion. Its ex- 
trinsic weakness, its incompetency to satisfy the mind as to the 
existence of the fact, and the frauds which may be practised 
under its cover, combine to support the rule that hearsay evi- 
dence is totally inadmissible.^ 

§ 100. Original and hearsay evidence distinguished. Before we pro- 
ceed an} farther in the discussion of this branch of evidence, it 
will be proper to distinguish more clearly between hearsay evidence 
and that which is deemed original. For it does not follow, because 
the writing or words in question are those of a third person, not 
under oath, that therefore they are to be considered as hearsay. 
On the contrary, it happens, in many cases, that the very fact in 
controversy is, whether such things were Avritten or spoken, and 
not whether they were true ; and, in other cases, such language 
or statements, whether written or spoken, may be the natural or 
inseparable concomitants of the principal fact in controversy .^ 
In such cases, it is obvious that the writings or words are not 
within the meaning of hearsay, but are original and independent 
facts, admissible in proof of the issue. 

§ 101. Reputation, statements as facts. Thus, where the ques- 
tion is, whether the .party acted prudently, wisely, or in good 
faith, the information on which he acted, whether true or false, 
is original and material evidence. This is often illustrated 
in actions for malicious prosecution ; ^ and also in cases of 
agency and of trusts. So, also, letters and conversation addressed 
to a person, whose sanity is the fact in question, being con- 
nected in evidence with some act done by him, are original evi- 
dence to show whether he was insane or not.* The replies given 

1 Per Marshall, C. J., in Mima Queen this head, it has been held that where 
V. Hepburn, 7 Cranch, 290, 2'J-3, 2%; one claimed to have procured a pistol to 
Davis ('. Wood, 1 Wheat. •>, 8; Rex v. defend himself ajjainst the attack of 
Eriswell, 3 T. K. 707. [Evidence upon another, upon the ground of certain infor- 
preliminary questions with reference to niation received from others, such infor- 
tiieadmis.sibility or exclusion of evidence, mation becomes an original fact, proper 
being addressed to the court, is not gov- to be proved or disproved in the case, 
erned by the rides applicable to testimony People v. Shea, 8 Cal. 538. 

addressed to tiie jury, and hearsay may » Taylor v. Willans, 2 B. & Ad. 845. 

be admitted. Uriggs v. Hyatt, 2 Abb. So, to reduce the damages, in an actioa 

Pr. (N. Y.) 44'.».] for libel. Colman y. South wick, 9 Johns. 

2 Bartlelt r. Delprat, 4 Mass. 708 ; Du 45. 

Bost V. Beresford, 2 Campb. 511. Under * Wheeler v. Alderson, 3 Hagg. EccL 



CHAP, v.] 



HEARSAY. 



123 



to inquiries made at the residence of an absent witness, or at the 
dwelling-house of a bankrupt, denying that he was at home, are 
also original evidence.^ In these and the like cases, it is not 
necessary to call the persons to whom the inquiries were addressed, 
since their testimony could add nothing to the credibility of the 
fact of the denial, which is the only fact that is material. This 
doctrine applies to all other communications, wherever the fact 
that such communication was made, and not its truth or falsity, 
is the point in controversy.^ Upon the same principle, it is con- 
sidered that evidence of general reputatitm, reputed ownership^ 
public rumor, general notorieti/, and the like, though composed of 
the speech of third persons not under oath, is original evidence, 
and not hearsay ; the subject of inquiry being the concurrence of 
many voices to the same fact.^ 



574, 608 ; Wristht v. Tatham, 1 Ad. & El. 
8, 8; s. c. 7 Ad. & El. 313; s. c. 4 Bing. 
N. C 489. Whether letters addressed to 
the person whose sanity is in issue are 
admissible evidence to prove how he was 
treated by those who knew him, without 
showing any reply on his part, or any 
other act xionnected with tlie letters or 
their contents, was a question much dis- 
cussed in Wriglit v. Tatham. Their ad- 
missibility was strongly urged as evidence 
of tlie manner in which the person was in 
fact treated by those who knew him ; but 
it was replied, tliat the effect of tlie letters, 
alone considered, was ouly to show what 
were the opinions of the writers ; and that 
mere opinions, upon a distinct fact, were 
in general inadmissible ; but, wlienever ad- 
missible, they must be proved, like otlier 
facts, by the witness himself under oath. 
The letters in this case were admitted by 
Gurney, B., who hold the assizes ; and 
upon error in the Exchequer Chamber, 
four of the learned judges deemed them 
rightly admitted, and three thought other- 
wise; but the point was not decided, a 
venire de novo being awarded on another 
ground. See 2 Ad. & El. 3 ; and 7 Ad & 
El. 329. Upon the new trial before the 
same judge, the letters were again re- 
ceived ; and for this cause, on motion, a 
new trial was granted by Lord Denman, 
C. J., and Littledale and Coleridge, 
Judges. The cause was then again tried 
before Coleridge, J., who rejected the 
letter; and exceptions being taken, a 
writ of error was again brought in the 
Exchequer Chamber ; where the six 
learned judges present, being divided 
equally upon the question, the judgment 
of the King's Bench was affirmed (see 7 



Ad. & El. 313, 408), and this judgment 
was afterwards affirmed in the House of 
Lords (see 4 Bing. N. C. 489) ; a large 
majority of the learned judges concurring 
in opinion, that letters addressed to the 
party were not admissible in evidence, 
unless connected, by proof, with some 
act of his own in regard to the letters 
themselves, or their contents. 

1 Crosby y. Percy, 1 Taunt. 364; Mor- 
gan V. Morgan, 9 Bing. 359; Sumner ?>. 
Williams, 5 Mass. 444 ; Pelletreau v. 
Jackson, 11 W^end. 110, 123, 124; Key 
V. Shaw, 8 Bing. 320; Phelps v. Foot, 1 
Conn. 387. 

2 Whitehead v. Scott, 1 M. & Rob. 2 ; 
Shott V. Streatfield, Id. 8 ; 1 Ph. Evid. 188. 
[A witness may state wliat was said by 
a third person for the purpose of identi- 
fying a date or occasion. Hill v. North, 
34 Vt. 004. Or that the deceased was 
inquiring for the prisoner, on trial for 
murder, on the morning of the day of the 
murder, the object being to prove the 
fact of the inquiry. Com. v. Alley, Mass. 
1873, Pamphlet, p. 38. And see post, § 108.] 

3 Foulkes V. Sell way, 3 Esp. 236 ; Jones 
V. Perry, 2 Esp. 482; Rex v. Watson, 2 
Stark. 116; Bull. N. P. 296, 297. And 
see Hard v. Brown, 3 Washb. 87. Evi- 
dence of reputed ownership is seldom ad- 
missible, except in cases of bankruptcy, 
by virtue of the statute of 21 Jac. 1, c. 19, 
§ 11 ; Gurr v. Button, Holt's N. P. Cas. 
327 ; Oliver v. Bartlett, 1 Brod. & Bing. 
269. Upon the question, whetlier a libel- 
lous painting was made to represent a cer- 
tain individual. Lord Ellenborough per- 
mitted the declarations of the spectators, 
while looking at the picture in the exhi- 
bition-room, to be given in evidence. Dtt 



124 



LAW OF EVIDENCE. 



[part n. 



§ 102. Expressions of feeling. Wherever the bodily or mental 
feelings of an individual are material to be proved, the usual 
expressions of such feelings, made at the time in question, are 
also original evidence. If they were the natural language of the 
affection, whether of body or mind, they furnish satisfactory evi- 
dence, and often the only proof of its existence.^ And whether 
they were real or feigned is for the jury to determine. Thus, in 
actions for criminal conversation, it being material to ascertain 
upon what terms the husband and wife lived together before the 
seduction, their language and deportment towards each other, 
their correspondence together, and their conversations and cor- 
respondence with tliird persons, are original evidence.^ But, to 
guard against the abuse of this rule, it has been held, that, before 
the letters of the wife can be received, it must be proved that 
they were written prior to any misconduct on her part, and when 
there existed no ground for imputing collusion.^ If written after 
an attempt of the defendant to accomplish the crime, the letters 
are inadmissible.^ Nor are the dates of the wife's letters to the 



Bost V. Beresford, 2 Campb. 512. [The 
fact that a debtor was reputed insolvent 
at the time of an alleged fraudulent pref- 
erence of a creditor, is competent evi- 
dence tending to show that his preferred 
creditor had reasonable cause to believe 
liina insolvent. Lee v. Kilburn, 3 Gray, 
5'J4. And the fact that he was in good 
repute as to property may likewise be 
proved, to siiow that such a creditor had 
not reasonable cause to believe him in- 
solvent. Bartlett v. Decreet, 4 Gray, 113 ; 
Iley wood v. Keed, Id. 674. In both cases 
the testimony is admissible on the ground 
that the belief of men, as to matters of 
wiiich they have not ])ersonal knowledge, 
is reasonably supposed to be affected by 
the opinions of others who are about 
them. See also Carpenter v. Leonard, 3 
Allen, 32; and Whitcliery. Sliuttuck, Id. 
31"J. So in an action for fraudulently 
representing another wortiiy of credit, 
witnesses conversant with the facts of 
the transaction in question may be al- 
lowed to depose that at the time they 
also regarded the person trustworthy. 
So it may be shown that sucii person 
was at that time generally so reputed 
among tradesmen with whom he dealt. 
Siiecn »'. Bumpstead, 10 Jur. n. s. 242; 
Exch. Cham. ; a. c. 2 II. & C. 103.] 

1 [Sucii evidence may be classed as 
natural in contradistinction to personal 
evidence. Philips v. Ivelley, 2'i Ala. G2b. 



It is not, however, to be extended beyond 
the necessity on which the rule is founded. 
Any thing in the nature of narration or 
statement is to be carefully excluded, 
and the testimony is to be confined 
strictly to such complaints, exclamations, 
and expressions or groans, as usually and 
naturally accompany and furnish evi- 
dence of a present existing pain or malady, 
Bacon v. Charlton, 7 Cush. 581, 58tj; 
though the jilu'sician may state what the 
patient said in describing his bodily con- 
dition, if said under such circumstances 
as free it from all suspicion of reference 
to future litigation, and give it tlie 
character of res geshe, and it constitute 
the basis of his opinion of the cause of 
the malady, not including, however, the 
specific cause of his injury. 111. Cen. 
K. K. Co. V. Sutton, 42 III. 438; State v. 
Davidson, 30 Vt. 377 ; Burber v. Merriam, 
11 Allen (Mass.), 322; Denton v. State, 
1 Swan (Tenn.), 297.1 

- Trelawney v. Coleman, 2 Stark. 101 ; 
8. c. 1 Barn. & Aid. 00; Willis v. Bar- 
nard, 8 Bing. 376 ; Elsam v. Faucett, 2 
Ksp. 502; Winter v. Wroot, 1 M. &, Rob. 
404; Gilchrist i-. Bale, 8 Watts, 355; 
Thompson v. Freeman, Skin. 402. 

* Edwards i-. Crock, 4 Ksp. 39; Tre- 
lawney V. Coleman, 1 Barn. & Aid. 90; 
1 riiil. Evid. 100. 

* Wilton V. Webster, 7 Car. & P. 198. 



CHAP. Y.] 



HEAESAY. 



125 



husband received as sufficient evidence of the time when they 
were written, in order to rebut a charge of cruelty on his part ; 
because of the danger of collusion.^ So, also, the representation 
by a sick person of the nature, symptoms, and effects of the 
malady under which he is laboring at the time, are received as 
original evidence. If made to a medical attendant, they are of 
greater weight as evidence ; but, if made to any other perse n, 
they are not on that account rejected.^ In prosecutions for rape, 
too, where the party injured is a witness, it is material to show 
that she made complaint of the injury while it was yet recent. 
Proof of such complaint, therefore, is original evidence ; but the 
statement of details and circumstances is excluded, it being no 
legal proof of their truth.^ 

§ 103. Relationship. To tliis head may be referred much of 
the evidence sometimes termed " hearsay," which is admitted in 
cases of pedigree. The principal question, in these cases, is that 
of the parentage or descent of the individual ; and, in order to 
ascertain this fact, it is material to know how he was acknowl- 
edged and treated by those who were interested in him, or sus- 
tained towards him any relations of blood or affinity. It was long 
unsettled, whether auj and what kind of relation must have sub- 
sisted between the person speaking and the person whose pedigree 
was in question ; and there are reported cases in which the dec- 



1 Houliston V. Smyth, 2 Car. & P. 22; 
Trelawney v. Coleman, 1 Barn. & Aid. 90. 
[And where in an action against a hus- 
band for the board of his wife, the plain- 
tiff had introduced testimony tending to 
show a certain state of mind on the part 
of the wife, her declarations to third 
persons on that subject, expressive of her 
mental feelings, are admissible in favor 
of the husband. Jacobs v. Whitcomb, 10 
Cush. 255.] 

2 Aveson v. Lord Kinnaird, 6 East, 
188 ; 1 Ph. Evid. 191 ; Grey v. Young, 4 
McCord, 38; Gilchrist v. Bale, 8 Watts, 
355. [Gray v. McLaughlin, 26 Iowa. 279. 
But only such facts as show the character 
of the malady and its cause ; not facts 
giving no aid in this subject. Morrissey 
V. Ingham, 111 Mass. 63. 

So the exclamations and complaints 
of a person annoyed by an offensive 
smell may be given in evidence. Kearney 
V. Farell, 28 Conn. 317. In an action 
for an injury caused by a defect in the 
highway, groans or exclamations uttered 
by the plaintiff at any time, expressing 



present pain or agony, and referring by 
word or gesture to the seat of the pain, 
are competent testimony for the plaintiff. 
Bacon v. Charlton, 7 Cush. 581, 586; 
State V. Howard, 32 Vt. 380; Kent v. 
Lincoln, Id. 591.1 

3 1 East, P. C. 444, 445 ; 1 Hale, P. C. 
6-33; 1 Russell on Crimes, 565; Rex v. 
Clarke, 2 Stark. 241 ; Laushlin v. The 
State, 18 Ohio, 99 [Reg. v. Megson, 9 C. 
& P. 421. Whether a complaint of rob- 
bery to a constable is admissible, qncere. 
Reg. I'. Wink, 6 C. & P. 397; Reg. v. 
Osborne, C. & M. 624; Morrissey v. 
Ingham, HI Mass. 63 ; People v. McCrea, 
32 Cal. 98; Jordan's case, 25 Grat. (Ya.) 
943; post, § 108]. In a pi-osecution for 
conspiring to assemble a large meeting, 
for the purpose of exciting terror in 
the community, the complaints of ter- 
ror, made by persons professing to be 
alarmed, were permitted to be proved by 
a witness who heard them, without call- 
ing the persons themselves. Regina v. 
Yincent et al., 9 C. & P. 275. See Bacon 
V. Charlton, 7 Cush. 581. 



12b 



LAW OF EVIDENCE. 



[PABT n. 



larations of servants, and even of neighbors and friends, have 
been admitted. But it is now settled, that the law resorts to 
hearsay evidence in cases of pedigree, upon the ground of the 
interest of the declarants of the person from whom the descent is 
made out, and their consequent interest in knowing the connec- 
tions of the family. The rule of admission is, therefore, restricted 
to the declarations of deceased persons who were related by blood 
or marriage to the person, and, therefore, interested in the suc- 
cession in question.^ And general repute in the family, proved 
by the testimony of a surviving member of it, has been considered 
as falling within the rule.^ 

§ 104. Birth, death, marriage. The term pedigree, however, em- 



1 Vowles V. Young, 13 Ves. 140, 147 ; 
Goodriglit V. Moss, Cowp. 591, 594, as 
expounded by Lord Eldon, in Whitclocke 
V. Baker, 13 Ves. 514 ; Johnson v. Law- 
son, 2 Bing. 86 ; Monkton v. Attorney- 
General, 3 Kuss. & My. 147, 156; Crease 
V. Barrett, 1 Cromp. Mees. & Ros. 919, 
928; Casey v. O'Shaunessy, 7 Jur. 1140; 
Gregorys. Baugh, 4 Rand. 007 ; Jewell v. 
Jewell, 1 How. tS.C.) 231; s.c. 17 Peters, 
213; Kaywood v. Barnett, 3 Dev. & Bat. 
91 ; Jackson v. Browner, 18 Johns. 37 ; 
Chapman v. Chapman, 2 Conn. 347 ; 
Waldron v. Tuttle, 4 N. H. 371. The 
declarations of a mother, in disparage- 
ment of the legitimacy of her cliild, have 
been received in a question of succession. 
Hargrave v. Hargrave, 2 C. & K. 701 
[Mooersy. Bunker, 9 Foster (N. H.), 420; 
Emerson v. White, LI. 482; Kelley v. Mc- 
Guire, 15 Ark. 5.55]. 

2 Doe V. Griffin, 15 East, 20. There 
is no valid objection to such evidence, be- 
cause it is hearsay upon hearsay, pro- 
vided all the declarations are within the 
family. Thus, the declarations of a de- 
ceased lady, as to what had been stated 
to her by her husband in hfs lifetime, 
were admitted. Doe v. Randall, 2 M. & 
P. 20; Monkton v. Attorncv-Gcneral, ,2 
Russ. & My. 105; Bull. N. P.' 295; Elliott 
c. Piersoll, 1 Putcrs, 328, 337. It is for 
tlio judge to decide, whether the decla- 
rants were " members of the family so as 
to render their evidence admissible;" 
ami for the jury to settle the fact to 
whicii tb.eir declarations relate. Doe v. 
Davis, 11 Jur. 007 ; 10 Ad. & El. n. 8. 
314. [See also Copes v. Pearce, 7 Gill, 
247; Clements v. Hunt, 1 Jones (N. C), 
Law, 400.] In regard to the value and 
weight to be given to this kind of evi- 
dence, the following observations of Lord 
Langdale, M. \i., are entitled to great 



consideration. "In cases," said he, 
" where the whole evidence is tradi- 
tionary, when it consists entirely of 
family reputation, or of statements of 
declarations made by persons who died 
long ago, it must be taken with such 
allowances, and also with such suspicions, 
as ought reasonably to be attached to it. 
When family reputation, or declarations 
of kindred made in a family, are the sub- 
ject of evidence, and the reputation is of 
long standing, or the declarations are of 
old date, the memory as to the source of 
the reputation, or as to the persons who 
made the declarations, can rarely be 
characterized by perfect accuracy. What 
is true may become blended with, and 
scarcely distinguishable from, something 
that is erroneous ; the detection of error 
in any part of the statement necessarily 
throws doubt upon the whole statement, 
and yet all that is material to the cause 
may be perfectly true ; and if the whole 
be rejected as false, because error in some 
part is proved, the greatest injustice may 
be done. All testimony is subject to 
such errors, and testimony of this kind 
is more particularly so; an<l however 
difficult it may be to discover the truth, 
in cases where there can be no demon- 
stration, and where every conclusion 
which may be drawn is subject to some 
doubt or uncertaint}', or to some oppos- 
ing probabilities, the courts are bound 
to adopt the conclusion which appears to 
rest on the most solid foundation." See 
Johnson v. Todd, 5 Boav. 599, (>(>0. |In 
Johnson v. Howard, 1 H. & McII. 281, 
traditional evidence by common repute 
was admitted to show that two persons 
were brothers of the half blood, it not 
appearing that hotter evidence was pro- 
curable.] 



CHAP, v.] 



HEABSAY. 



127 



braces not only descent and relationship, but also the facts of 
birth, marriage, and death, and the times when these events hap- 
pened. These facts, therefore, may be proved in the manner 
above mentioned, in all cases where they occur incidentally, and 
in relation to pedigree. Thus, an entry, by a deceased parent or 
other relative, made in a Bible, family missal, or any other book, 
or in any document or paper, stating the fact and date of the 
birth, marriage, or death of a child, or other relative, is regarded 
as a declaration of such parent or relative in a matter of pedi- 
gree.^ So, also, the correspondence of deceased members of the 
family, recitals in family deeds, such as marriage settlements, 
descriptions in wills, and other solemn acts, are original evidence 
in all cases where the oral declarations of the parties are admissi- 
ble.2 In regard to recitals of pedigree in bills and answers in 
Chancer}^, a distinction has been taken between those facts which 
are not in dis]5ute and those which are in controversy ; the former 
being admitted, and the latter excluded.^ Recitals in deeds, 
other than family deeds, are also admitted, when corroborated 
by long and peaceable possession according to the deed,* 



1 The Berkley Peerage case, 4 Campb. 
401, 418; Doe v. Bray, 8 B. & C. 813; 
Monkton v. The Attorney-General, 2 
Euss. & iSIy. 147 ; Jackson v. Cooley, 8 
Jolms. Vl%, 131, per Thompson, J.; 
Douglas V. Saiinderson, 2 Dall. 116 ; The 
Slane Peerage case, 5 Clark & Fin. 24 ; 
Carskaddcn v. Poorman, 10 Watts, 82; 
The Sussex Peerage case, 11 Clark & 
Fin. 85; Watson v. Brewster, 1 Barr, 
881. [Betty v. Nail, 6 Ir. Law, x. s. 17.] 
And in a recent case this doctrine lias 
been thought to warrant the admission 
of declarations, made by a deceased per- 
son, as to where his family came from, 
where he came from, and of what place 
his father was designated. Shields v. 
Boucher, 1 DeGex & Smale, 40. [So 
also the common reputation in the family 
is sufficient evidence of the death of a 
person. Anderson v. Parker, 6 Cal. 197. 
See also Redfield on Wills, part 2, § 1. 
So also in regard to the time of one's 
death. Morrill v. Foster, 33 N. H. 379.] 
But not in regard to his age. Roe v. 
Neal, Dudley (Ga.), 168; Kidney v. Cock- 
burn, 2 P. & M. 1G8. But see Roe v. 
Rawlings, 7 East, 290. Nor the place of 
his birth. Wilmington v. Burlington, 4 
Pick 174. ?sor the location of the home- 
stead. Hall V. Mayo, 97 Mass. 416; 
Adams r. Swansea, 116 ISIass. 591. 

2 Bull. N. P. 233; Neal v. Wilding, 2 
Str. 1151, per Wright, J. ; Doe v. E. of 



Pembroke, 11 East, 503 ; Whitelocke v. 
Baker, 13 Ves. 514 ; Elliott v. PiersoU, 1 
Pet. 328; 1 Ph. Evid. 216, 217, and peer- 
age cases there cited. In two recent 
cases, the recitals in the deeds were held 
admissible only against the parties to 
the deeds ; but in neither of those cases 
was the party proved to have been re- 
lated to those whose pedigree was recited. 
In Fort V. Clarke, 1 Russ. 601, the grant- 
ors recited the death of the sons of John 
Cormick, tenants in tail male, and de- 
dared themselves heirs of the bodies of his 
daughters, who were devisees in remain- 
der; and in Slaney v. Wade, 1 Mylne & 
Craig, 338, the grantor was a mere trustee 
of tJie estate, not related to tlie parties. 
See also Jackson v. Cooley, 8 Johns. 128; 
Jackson r. Russell, 4 AVend. 543; Keller 
V. Xutz, 5 S. & R. 251. If the recital in 
a M-ill is made after the fact recited is in 
controversy, tlie will is not admissible as 
evidence of that fact. The Sussex Peer- 
age case, 11 Clark & Fin. 85. 

3 Phil. & Am. on Evid. 281, 232, and 
the authorities there cited. Ex parte 
affidavits, made several years before, to 
prove pedigree b^' official requirement, 
and prior to any lis mota, are admissible. 
Hurst V. Jones, Wall. Jr. 373, App. 3. 
As to the effect of a lis mofa upon the ad- 
missibility of declarations and reputation, 
see infra^%% 131-1.34. 

* Stokes V. Daws, 4 Mason, 268. 



128 LAW OF EVIDENCE. [PAET U. 

§ 105. Inscriptions. Inscriptions oti tombstones, and other funeral 
monuments, engravings on rings, inscriptions on family portraits, 
charts, or pedigree, and the like, are also admissible, as original 
evidence of the same facts. Those which are proved to have 
been made by or under the direction of a deceased relative are 
admitted as his declarations. But if they have been publicly 
exhibited, and were well known to the family, the publicity of 
them supplies the defect of proof, in not showing that they were 
declarations of deceased members of the family ; and they are 
admitted on the ground of tacit and common assent. It is pre- 
sumed, that the relatives of the family would not permit an 
inscription without foundation to remain ; and that a person 
would not wear a ring with an error on it.^ Mural and other 
funeral inscriptions are provable by copies, or other secondary 
evidence, as has been already shown.^ Their value, as evidence, 
depends much on the authority under which they were set up, 
and the distance of time between their erection and the events 
they commemorate.^ 

§ 106. Family conduct. Under this head may be mentioned 
family conduct, such as the tacit recognition of relationship, and 
the disposition and devolution of property, as admissible evidence, 
from which the opinion and belief of the family may be inferred, 
resting ultimately on the same basis as evidence of family tradi- 
tion. Thus, it was remarked by Mansfield, C. J., in the Berkley 
Peerage case,^ that, " if the father is proved to have brought up 
the party as his legitimate son, this amounts to a daily assertion 
that the son is legitimate." And Mr. Justice Ashhurst, in another 
'case, remarked that the circumstance of the son's taldng the name 
of the person with whom his mother, at the time of his birth, lived 

[Common practice, in regard to one's N. R. 141. Armorial bearings, proved to 

name, is not ohjectionable on the ground have existed while the heralds had the 

of hearsay. Willis n. Quimby, 11 Foster, power to punish usurpations, possessed 

485.] an official weight and credit. But this 

* Per Lord Erskine, in Vowles i-. authority is thought to have cea.'sed with 

Young, 13 Ves. 144; Monkton v. The the last herald's visitation, in 1686. See 

Attorney-General, 2 Kus. & Mylne, 147 ; 1 Pliil. Kvid.2:i4. At present they amount 

Kidney v. Cockburn, Id. 107 ; The to no more than family declarations. 

Camoys Peerage, CI. «& Fin. 789. An [See Shrewsbury Peerage, 7 H. L. Cas. 

ancient pedigree, purporting to have 1.] 

been collected from hisiori/, as well as 2 Supra, § 94. [See also Eastman v. 

from other sources, was held admissible, Martin, I'J N. II. 152.1 
at least to sliow tlie relationship of per- » Some remarkable mistakes of fact 

sons described by the framer as living, in such in.scriptions are mentioned in 

and therefore to be presumed as known 1 Phil. Evid. 222. 
to him. Davies v. Lowndes, 7 Scott, * 4 Campb. 416. 



CHAP, v.] HEARSAY. 129 

in a state of adultery, which name he and his descendants ever 
afterwards retained, " was a very strong family recognition of his 
illegitimacy." ^ So, the declarations of a person, since deceased, 
that he was going to visit his relatives at such a place, have been 
held admissible to show that the family had relatives there .^ 

§ 107. Marriage. It is frequently said, that general reputation 
is admissible to prove the fact of the marriage of the j)arties 
alluded to, even in ordinary cases, where pedigree is not in ques- 
tion. In one case, indeed, such evidence was, after verdict, held 
sufficient, prima facie, to warrant the jury in finding the fact of 
marriage, the adverse party not having cross-examined the witness, 
nor controverted the fact by proof.^ But the evidence produced 
in the other cases cited in support of this position cannot properly 
be called hearsay evidence, but was strictly and truly original 
evidence of facts from which the marriage might well be inferred ; 
such as evidence of the parties being received into society as man 
and wife, and being visited by respectable families in the neighbor- 
hood, and of their attending church and public places together as 
such, and otherwise demeaning themselves in public, and address- 
ing each other as persons actually married.* 

§ 108. Res gestae. There are other declarations which are ad- 
mitted as original evidence, being distinguished from hearsay by 
their connection with the principal fact under investigation. The 

1 Goodright v. Saul, 4 T. R. 356. Day, 290, 293; In re Taylor, 9 Paige, 

2 Rishton V. Nesbitt, 2 M. & Rob. 252. 611 [post, vol. ii. §§ 461, 4G2. It seems 
[These declarations embrace what is to be requisite, in regard to the ad- 
said by liusband or wife, as to the connec- missibility of evidence of reputation 
tions in the family of the other, but not to prove a marriage, that the persons 
those made by members of the family of from whom the information is derived 
one as to the family of the other. And should be shown to have deceased, or 
letters maybe produced to show how the that the reputation should be known to 
wife was addressed by members of her the witness to have been general among 
own family. Shrewsbury Peerage case, the connections in the family, and tliat 
7 H. L. Cas. 1.] there sliould have been no controversy 

3 Evans v. Morgan, 2 C. & J. 453. in regard to it. For after tlie existence 
[Contra, Westfield i'. Warren, 8 N. J. Law, of lis viola it is not competent to give 
249. Nor is reputation receivable as evidence of such reputation ; and it will 
evidence that two persons lived together not be allowed to give such evidence 
in concubinage. Corrie v. Gumming, 26 upon proof that such suit was fraud u- 
Ga. GliO; Henderson v. Gargill, 31 Miss, lently instituted for tlie purpose of ex- 
o67. But see llargrave v. Hargrave, 2 eluding tlie testimony. But tlie exist- 
C. & K. 701; Jewell v. Jewell, 1 How. ence of a former suit between tlie same 
(U. S.) 219.] parties will not exclude such reputation, 

* 1 Phil. Evid. 234, 235; Hervey v. unless the same point were brought into 

Hervey, 2 W. Bl. 877 ; Birt v. Barlow, controversy, wliicli it is now sought to 

Doug. 171, 174 ; Read r. Passer, 1 Esp. establisli. Butler v. Mountgarrett, 7 H. 

218; Leader v. Barry, Id. 353; Doe v. L. Cas. 6-33; Shedden y. Patrick, 2 Sw. 

Fleming, 4 Bing. 260; Sraitli v. Smith, 1 & Tr. 170]. 
Phillim. 204; Hammick v. Brouson, 5 

VOL. I. 9 



130 



LAW OF EVIDElSrCE. 



[pABT n. 



affairs of men consist of a complication of circumstances so inti- 
mately interwoven as to be hardly separable from each other. 
Each owes its birth to some preceding circumstance, and, in its 
turn, becomes the prolific parent of others ; and each, during its 
existence, has its inseparable attributes, and its kindred facts, 
materially affecting its character, and essential to be knwn in 
order to a right understanding of its nature. These surrounding 
circumstances, constituting parts of the res gestce, may always be 
shown to the jury, along with the principal fact ; and their admissi- 
bility is determined by the judge, according to the degree of their 
relation to that fact, and in the exercise of his sound discretion ; 
it being extremely difficult, if not impossible, to bring this class 
of cases within the limits of a more particular description.^ The 
principal points of attention are, whether the circumstances and 
declarations offered in proof were contemporaneous with the main 
fact under consideration, and whether they were so connected 
with it as to illustrate its character.^ Thus, in the trial of Lord 



1 Per Park, J., in Rawson v. Haigh, 2 
Bing. 104; Ridley v. Gyde, 9 Bing. 349, 
352; Pool V. Bridges, 4 Pick. 379; Allen 
V. Duncan, 11 Pick. 309 [Haynes v. Rat- 
ter, 24 Pick. 242; Gray v. Goodrich, 7 
Johns. 95; Bank of Woodstock v. Clark, 
25 Vt. 308; Mitchum v. State, 11 Ga. 
615; Tomkies v. Reynolds, 15 Ala. 109; 
Cornelius v. The State, 7 Eng. 782. 
When an act is done to which it is 
necessary or important to ascribe a char- 
acter, njotive, or object, what was said 
by the actor at the time from which the 
character, motive, or cause may be col- 
lected, is part of the rfs (lesice, verbal acts, 
and may be given in evidence, whether 
tlie actor be or be not a party to the suit. 
Bateman o. B;iiley, 5 T. R. 512; Gilchrist 
r. Bale, 8 Watts (Pa ), 355; Barnes v. 
Allen, 1 Keyes (N. Y.), 390; Swift v. 
Mass. Mut. "Life Ins. Co., Ct. of App. 
N. Y. In. L. J., Jan. 187(); Hadley r. Car- 
ter, 8 N. II. 40; Garber v. State, 4 Cold. 
(Tenn.) HU]. 

On the trial of an action brought by a 
principal against an ngent who had charge 
of certain l)usiness of the principal for 
many years, to recover money received 
by tlie defendant from cl;inciestine sales 
of projjcrty of the jilaintilf, and money of 
the plaintifl' framhilently taken by the 
defendant, evidence that tlie defendant 
at tiie time of entering the plaintiff's 
service was insolvent, and that ho liad 
since received ordy a limited siihiry anil 
some small additional compensation, and 



that subsequent to the time of his alleged 
misdoings, and during the period speci- 
fied in the writ, he was the owner of a 
large property, far exceeding the aggre- 
gate of all his salary and receipts while 
in the plaintiff's service, is admissible as 
having some tendency to prove, if the 
jury are satisfied by other evidence, that 
monej'' had been taken from the plaintiff 
by some one in his employ, that the de- 
fendant is the guilty person ; such facts 
being in nature of res gcstm accompany- 
ing the very acts and transactions of the 
defendant under investigation, and tend- 
ing to give them character and signifi- 
cance. And the declarations of the de- 
fendant concerning his property and 
business transactions, made to third per- 
sons, in the absence of tlie plaintiff or 
his agents, are inadmissible to rebut sucli 
evidence. Boston & W. 1^ R. (^orp. v. 
Dana, 1 Gray, 88, 101, 103 fllackett ;;. 
King, 8 Allen, 144]. See also Common- 
wealtii V. Montgomery, 11 JMet. 584. 

2 Declarations, to become part of the 
res (jext(p, " nnist have been made at the 
time of the act done, which they are sup- 
posed tocdiaracterize ; and have been well 
calculated to unfold the nature and qual- 
ity of the facts they were intended to ex- 
l)lain, and so to harmonize with them as 
obviously to constitute one transaction." 
I'cr Ilosnier, C. J., in Enos v. Tuttle, 3 
Conn. 250. And see In re Taylor, 9 
I'aige. fill ; Carter c. I'uchannon, 3 Kel- 
Icy, 513; Blood u Rideout, 13 Met. 237; 



CHAP, v.] 



HEABSAY. 



131 



George Gordon for treason, the cry of the mob who accompanied 
the prisoner on his enterprise was received in evidence, as form- 



Boyden v. Burke, 14 How. S. C. 575. 
[Declarations to be admissible must tend 
to characterize tlie act, Elliins v. Hamil- 
ton, 20 Vt. 627 ; but, if not consist- 
ent with the obvious character of the act, 
they will not control it. State v. Shellidy, 
8 Clarke (Iowa), 477. If the declaration 
is connected with, or grows out of, the 
act, although not contemporaneous with 
it, but happening after the lapse of 
Bome time, it is admissible ; as, where 
an accident happens, and the injured 
party declares to the physician, called 
soon after tiie accident, how it hap- 
pened, Harriman v. Stowe, 57 Mo. 93 ; 
or a person immediately escaping from 
an assault declares who committed it. 
Com. V. McPike, 3 Cush. (Mass.) 181. See 
also Insurance Co. v. Morley, 8 Wall. 
(U. S.) 397, where it is said that the ten- 
dency of recent cases is to extend rather 
than to narrow the scope of the rule ad- 
mitting declarations as part of tlie resfjestce. 
And following this case the landlord of a 
hotel, where a party had shot himself, was 
allowed to testify that the occupants of 
an adjoining room came out, "seemingly 
excited and saying something about the 
man having shot himself," as part of the 
res gestae, the issue being whether the de- 
ceased died by his own hand, and the oc- 
cupant of the adjoining room being dead. 
Kewton v. Mut. Ben. Life Ins. Co., 2 Dill, 
C. Ct., U. S. 154. See also Beaver v. Tay- 
lor, 1 Wall. (U. S.) 637 ;pos^ § 110; People 
V. Vernon, 35 Cal. 49 ; Hanover R. R. Co. 
V. Coyle, 55 Pa. St. 402; Rawson v. Haigh, 
2 Bing. 99 ; Jewell v. Jewell, 1 How. 
(U. S.) 219; Brownell y. Pacific R. R. Co., 
47 Mo. 239 ; Rouch v. Gt. West. R. R. Co., 
1 Q. B. 60; Fificld v. Richardson, 34 Vt. 
410. On the trial of a prisoner for mur- 
der, a 'statement made by him a few 
minutes after the homicide, near the 
place and in the liearing and presence of 
eye-witnesses of the homicide, who were 
not called by the commonwealth, is ad- 
laissible for the prisoner as a part of the 
res (jestcB. Little's case, 25 Graft. (Va.) 
921. In Jordan's case, 25 Gratt. (Va.) 
943, the description of the robber, as 
given by the wife of the person robbed, 
to the officer a "few moments "(how many 
does not appear) after the crime was com- 
mitted, was admitted as part of the res 
pefitie. And see ante, § 102, n. So, the 
declaration of a party assaulted, made 
immediately after the assault, showing 
the character of tlie impression made 
at the time on his mind in regard to 



the nature of the attack, are admissible. 
Monday c. State, 32 Ga. 672. So, the dec- 
larations of a defendant, as to the cir- 
cumstances under which he killed a run- 
away slave, niade immediately after the 
fact, are admissible in an action of tres- 
pass for killing the slave. Hart v. Pow- 
ell, 18 Ga. 635. So, the declarations of a 
deceased son as to the manner in which 
he was injured, made after the injury, 
are admissible, as part of the res gestce, 
against the fatlier, in an action by him 
against the party alleged to have caused 
the injury. Stein v. R. R. Co., C. C. P. 
Phila. 7 Leg. Gaz. 233. But this is ad- 
missible, on perhaps a better ground. 
See post, § 180.] But declarations ex- 
planatory of a previous fact, e.g. how 
the party's hands became bloody, are 
inadmissible. Scraggs v. The State, 8 
Smed. & Marsh. 722. So, where a party, 
on removing an ancient fence, put down 
a stone in one of the post-holes, and the 
next day declared that he placed it there 
as a boundary; it was held that this dec- 
laration, not constituting part of the act 
done, was inadmissible in evidence in his 
favor. Noyes v. Ward, 19 Conn. 250. 
See Corinth v. Lincoln, 34 Maine, 310. 
In an action by a bailor against the bailee, 
for loss by his negligence, the declara- 
tions of the bailee, contemporaneous 
with the loss, are admissible in his favor, 
to show the nature of the loss. Story 
on Bailm. § 339, cites Tompkins v. Salt- 
marsh, 14 S. & R. 275; Beardslee v. 
Richardson, 11 Wend. 25; Doorman v. 
Jenkins, 2 Ad. & El. 80. So, in a suit 
for enticing away a servant, his declara- 
tions at the time of leaving his master 
are admissible, as part of the res gestce, to 
show the motive of his departure. Had- 
ley V. Carter, 8 N. H. 40. [In Lund v. 
Tyngsborough, 9 Cush. 3G, which was an 
action for injuries received through a 
defect in a highway, during tlie trial at 
Nisi Prins, a witness was permitted to 
say in reply to the question, "At the 
time when he ( the doctor, who died before 
the trial) was called, and while engaged 
in such examination, what did he say 
concerning such injury, its nature and 
extent? " that "I heard him say that it 
was a very serious injury; that it was 
more injured than though the bone was 
broken," &c. It did not appear how long 
it was after the accident happened when 
these declarations were made. The full 
bench decided that the evidence was 
wrongly admitted; and, in giving the 



132 



LAW OF EVIDEXCE. 



[PABT n. 



ing part of the res gestce, and showing the character of the princi- 
pal fact.^ So, also, where a person enters into land in order to 
take advantage of a forfeiture, to foreclose a mortgage, to defeat 
a disseisin,^ or the like ; or changes his actual residence, or domi- 
cile, or is upon a journey, or leaves his home, or returns thither, 
or remains abroad, or secretes himself; or, in fine, does any other 
act, material to be understood ; his declarations, made at the time 
of the transaction, and expressive of its character, motive, or 
object, are regarded as "verbal acts, indicating a present purpose 
and intention," and are therefore admitted in pro'of like any other 
material facts.^ So, upon an inquiry as to the state of mind, 
sentiments, or dispositions of a person at any particular period, 
his declarations and conversations are admissible.'* They are 
parts of the res gestce.^ 



opinion of the court, Fletcher, J., states 
at some length the rules of law applica- 
ble to the admissibilitj' of this class of 
testimony, which the profession will find 
a valuable summary of the law upon the 
point.] 

1 21 Howell's St. Tr. 542. [In an in- 
dictment for keeping a house of ill fame, 
evidence of conversations held by men 
immediately upon coming out of the 
house, and upon the sidewalk in front 

^.thereof, but not in presence of tlie de- 
fendant, nor of any of the inmates, as to 
what had taken place in tlie house, has 
been held to be inadmissible as part of 
the res (jest(e, and tending to show the 
character of the visitors in the house. 
Commonwealth v. Harwood, 4 Gray, 41.] 

2 Co. Litt. 49 h, 245 b; Kobinson v. 
Swett, 3 Greenl. 316 ; 3 Bl. Coram. 174, 
175. 

3 Bateman v. Bailey, 5 T. R. 512, and 
the observations of Mr. Evans upon it in 
2 Potli. Ohl. Ai)p. No. xvi. § 11 ; Hawson 
V. Haigh. 2 Bing. 99; Newman v. Stretch, 
1 M. & M. 388; Ridley v. Gyde, 9 Bing. 
349, 352 ; Smith i: Cramer, 1 Bing. N. C. 
685; Gorliam >•. Canton, (5 Greenl. 2iJG ; 
Fellowes v. Williamson, I M. & M. 300; 
Vaclier v. Cocks, Id. 353 ; 1 B. & Ad. 
135; Thorndike v. Citv of Boston, 1 Met. 
242; Carroll v. The State, 3 Humph. 315; 
Kilburn v. Hennet, 3 ]\Iet. 199 ; Salem v. 
Lynn, 13 Met. 544 ; I'orter v. Ferguson, 
4 Fla. 104 [Autaugu County i;. Davis, 
32 Ala. 703]. 

* Barthelemy v. The People, &c., 2 
Hill (N. Y.), 248, 2.37; Wetmore v. Mell, 
1 Ohio, y. s. 2f, [supra. § 102; Shailer 
V. Bumstead, 99 Mass. 112). 

* [It is only when the thing done Is 



equivocal, and it is necessary to render 
its meaning clear, and expressive of a 
motive or object, that it is competent to 
prove declarations accompanying it, as 
falling within tlie class of res gestce. By 
Bigelow, J., in Nutting v. Page, 4 Gray, 
584. Thus, the reasons stated by the 
master-workman, when building a dam, 
for making it lower in the middle than 
at either end, are not competent evidence 
against his employer that it was so made ; 
nor are the instructions given by the 
owner of the dam while rebuilding it, to 
mark the height of the old dam and to 
erect the new one of the same height. 
Nutting I'. Page, nt supra. See also 
Carleton v. Patterson, 9 Foster (N. H.), 
680. The conduct and exclamations of 
passengers on a railroad at the time of 
an accident, though not in tlie presence 
of the party receiving an injury, are ad- 
missible as part of the rrs i/rsta', to justify 
the con<luctof the ])artv injured. Galena, 
&c. R. R. Co. ).'. Fay, 1(1 111. 558. A letter 
wliicli is part of the its (jes/d-, is admissi- 
bk- in evidence, although the writer of it 
might be a witness. Roach v. Learned, 
37 Maine, 110. In a question of settle- 
ment the paujier's declarations when in 
the act of removing are admissible. 
Rlchmoiul I'. Thomaston, 38 Maine, 232; 
Cornville v. Brighton, 39 lb. 333. The 
acts and sayings of a constable at the 
time of a levy, are admissible as part of 
the res ijcsta;, in an action against tiie 
sureties on his bond for neglecting to 
make a return thereof. Dobbs i;. Justices, 
17 Geo. 624. (.4;/^^ § 104.] 

So it has been recently held, in Eng- 
land, that it is comiietent for tlie j)laiiitilf, 
for the purpose of proving upon whose 



CHAP. Y.] 



HEARSAY. 



133 



§ 109. Declarations as to title. In regard to the declarations of 
persons in possession of land, explanatory of the character of their 
possession, there has been some difference of opinion ; but it is 
now well settled, that declarations in disparagement of the title of 
the declarant are admissible as original evidence. Possession is 
prima facie evidence of seisin in fee-simple ; and the declaration 
of the possessor, that he is tenant to another, it is said, makes 
most strongly against his own interest, and therefore is admissi- 
ble.^ But no reason is perceived why every declaration accom- 
panjing the act of possession, whether in disparagement of the 
claimant's title, or otherwise qualifying his possession, if made in 
good faith, should not be received as part of the res gestce ; leading 
its effect to be governed by other rules of evidence.^ 



credit the goods sued for were sold, to 
put in evidence a letter written by liim- 
self, at the time the bargain was made, 
to his agent, desiring liim to inquire, as 
to the credit of the defendant, of a per- 
son to whom the person receiving the 
goods had referred him for that pur- 
pose, and stating tlierein that the de- 
fendant was tlie buyer. And it was 
further considered, that tlie jury miglit 
look at the whole letter, and although, 
in itself, it was not evidence of the 
truth of tlie facts affirmed, it might 
be considered as corroborative of tlie 
plaintiff's version of tlie transaction. 
Milne v. Leisler, 7 H. & N. 786; s. c. 8 
Jur. N. 8. 121 ; Eastman v. Bennett, 6 
Wis. 232, where the same principle is 
maintained.] 

^ Peaceable v. "Watson, 4 Taunt. 16, 
17, per Mansfield, C. J. ; West Cambridge 
V. Lexington, 2 Pick. 536, per Putnam, J. ; 
Little V. Libbv, 2 Greenl. 242; Doe v. Pet- 
tett, 5 B. & Aid. 223 ; Carne v. Nicholl, 1 
Bing. N. C. 430 ; per Lyndhurst, C. B., in 
Chambers v. Bernasconi, 1 Cromp. & Jer. 
457; Smith v. Martin, 17 Conn. 399; in- 
fra, § 189. 

2 Davies v. Pierce, 2 T. R. 53; Doe v. 
Eickarby, 5 Esp. 4; Doe v. Payne, 1 
Stark. (59; 2 Poth. on Obi. 254, App. 
No. xvi. § 11; Rankin v. Tenbrook, 6 
Watts, 388, 31t0, per Huston, J. ; Doe v. 
Pettett, 5 B. & Aid. 223 ; Reed i-. Dickev, 
1 Watts, 152; Walker r. .Broadstock,'l 
Esp. 458 ; Doe v. Austin, 9 Bing. 41 ; Doe 
r. Jones, 1 Campb. 3G7 ; Jackson v. 13ard, 
4 Johns. 230, 234 ; Weidman v. Kohr, 4 S. 
&R. 174; GibblehoHse v. Strong, 3Rawle, 
437; Norton r. Pettibone, 7 Conn. 319; 
Snelgrove v. Martin, 2 McCord, 241, 243 ; 
Doe d. Majoribanks v. Green, 1 Gow, 
227 ; Carne v. Nicoll, 1 Bing. N. C. 480 ; 



Davis V. Campbell, 1 Iredell, 482; Crane 
I'. Marshall, 4 Shepl. 27 ; Adams v. French, 
2 N. H. 287; Treat v. Strickland, 10 
Shepl. 284 ; Blake v. White. 13 N. H. 267 ; 
Doe V. Langfield, 16 M. & W. 497 ; Baron 
de Bode's case, 8 Ad. & El. n. s. 243, 244 ; 
Abney v. Kingsiand, 10 Ala. 355 , Dag- 
gett V. Shaw, 5 Met. 223 [Bartlett r. 
Emerson, 7 Gray, 174; Ware v. Brook- 
house, Id. 454; Flagg v. Mason, 8 Gray, 
556; Wood v. Foster, 8 Allen, 24]. 
Stark V. Boswell 6 Hill (N. Y.), 405; Pike 
I'. Hayes, 14 N. H. 19 ; Smith v. Powers, 
15 N. H. 546, 563 [Marcy v. Stone, 8 
Cush. 4 ; Stearns v. Hendersass, 9 lb. 
497 ; Plimpton r. Chamberlain, 4 Gray, 
320 ; Hvde v. Middlesex Co., 2 Grav, 267 ; 
Potts V. Everhart, 26 Penn. St. 493; St. 
Clair V. Shale, 20 lb. 105; Doe v. Camp- 
bell, 1 Ired. 482; Brewer i'. Brewer, 19 
Ala. 481. A declaration by a tenant, 
dead at the time of the trial, that he was 
not entitled to common of pasture in 
respect to his farm, is not admissible 
against his reversioner. Papendick v. 
Bridgwater, 30 Eng. Law & Eq. 293]. 
Accordingly, it has been held, that a 
statement made by a person not sus- 
pected of theft and before any search 
made, accounting for his possession of 
property whicli he is afterwards charged 
with having stolen, is admissible in his 
favor. Rex v. Abraham, 2 Car. & K. 550. 
But see Smith v. Martin, 17 Conn. 399. 
Where a party after a post-nuptial settle- 
ment mortgaged the same premises, it 
was held that, as his declarations could 
bind him only while the interest remained 
in him, his declarations, as to the consid- 
eration paid by the subsequent purchaser, 
were not admissible against the claimants 
under the settlement, for this would ena- 
ble him to cut down his own previoua 



134 LAW OF EVIDENCE. [PABT H. 

§ 110. Must be concomitant. It is to be observed, that, where 
declarations offered in evidence are merely narrative of a past 
occurrence, they cannot be received as proof of the existence of 
such occurrence. They must be coyicomitant with the principal 
act, and so connected with it as to be regarded as the mere result 
and consequence of the coexisting motives, in order to form a 
proper criterion for directing the judgment which is to be formed 
upon the whole conduct.^ On this ground, it has been holden 
that letters written during absence from home are admissible as 
original evidence, explanatory of the motive of departure and 
absence, the departure and absence being regarded as one con- 
tinuing act.2 

§ 111. Declarations of conspirators. The same principles apply 
to the acts and declarations of one of a company of conspirators, 
in regard to the common design as affecting his fellows. Here a 
foundation must first be laid by proof sufficient in the opinion 
of the judge to establish prima facie the fact of conspiracy 
between the parties, or proper to be laid before the jury as tend- 
ing to establish such fact. The connection of the individuals in 
the unlawful enterprise being thus shown, every act and declara- 
tion of each member of the confederacy, in pursuance of the 
original concerted plan, and with reference to the common object, 
is, in contemplation of law, the act and declaration of them all ; 
and is therefore original evidence against each of them. It makes 
no difference at what time any one entered into the conspiracy. 
Every one who does enter into a common purpose or design is 
generally deemed, in law, a party to every act which had before 

acts. Doe v. Webber, 3 Nev. & Man. 586. See also Boyden v. Moore, 11 Pick. 362 ; 

[And it has recently been held in Eng- Walton v. Green, 1 C. & P. 521 ; Heed v. 

land, Reg. v. Birmingham, 5 L. T. n. s. Dick, 8 Watts, 479; O'Kelly v. O'Kelly, 

80'>, that the oral declaration of a de- 8 Met. 436 ; Styles v. Western Railroad 

ceased occupant of premises, that he oc- Corp., Id. 44 [Battles v. Batchelder, 39 

cupied the same as tenant at a rent of Maine, 19]. 

£•20 per annum, was admissible to prove ^ Rawson v. Haigh, 2 Bing. 99, 104; 
rot only the fact of the tenancy, but the Marsh v. Davis, 24 Vt. 303; Nov Mil- 
amount of the rent.] ford V. Sherman, 21 Conn. 101. 'The 
1 2 Poth. on ()h\. by Evans, pp. 248, reasons given by a wife, on the clai/ a/ler 
240, App. No. xvi. § 11; Ambro.se v. her return to her father's house for .eav- 
Clendon, Cas. temp. Hardw. 267; Doe v. ing her husband, are not a part of the 
Webber, 1 Ad. & El. 733. In Ridley v. res qpstce, as connected with and part of 
Gyde, 9 Bing. 349, whore the point was the act of leaving her iiusband's house, 
to establish an act of bankruptcy, a con- and so are not admissible in evidence in 
versation of the bankrupt on the 20th of an action brought by the father against 
November, being a resumption and con- the husband for necessaries supplied the 
tinuation of one which h;id been begun, wife; those made at the time of the re- 
but broken off on the 25th of October turn being admissible. Johnson i». Sher- 
precediug, was admitted in evidence, win, 3 Gray, 374. See ante, § 108.] 



CHAP, v.] HEAESAY. 135 

been done by the others and a party to every act which may 
afterwards be done by any of the others in furtherance of such 
common design.^ Sometimes, for the sake of convenience, the 
acts or declarations of one are admitted in evidence before suffi- 
cient proof is given of the conspiracy ; the prosecutor undertaking 
to furnish such proof in a subsequent stage of the cause. But 
this rests in the discretion of the judge, and is not permitted, 
except under particular and urgent circumstances ; lest the jury 
ghould be misled to infer the fact itself of the conspiracy from 
the declarations of strangers. And here, also, care must be taken 
that the acts and declarations, thus admitted, be those only which 
were made and done during the pendency of the criminal enter 
prise, and in furtherance of its objects. If they took place at a 
subsequent period, and are, therefore, merely narrative of past 
occurrences, they are, as we have just seen, to be rejected.'-^ The 
term acts includes written correspondence, and other papers rela- 
tive to the main design; but whether it includes unpublished 
writings upon abstract questions, though of a kindred nature, has 
been doubted.^ Where conversations are proved, the effect of 
the evidence will depend on other circumstances, such as the fact 
and degree of the prisoner's attention to it, and his assent or dis- 
approval.* 

§ 112. Declarations of partners. This doctrine extends to all 
cases of partnership. Wherever any number of persons associate 
themselves in the joint prosecution of a common enterprise or 
design, conferring on the collective body the attribute of indi- 
viduality by mutual compact, as in commercial partnerships and 

1 Rex V. "Watson, 32 Howell's St. Tr. the others, and several weeks after the 
7, per Bayley, J. ; Rex v. Brandreth, Id. fact, was admitted by Garrow, B., with- 
857, 858; Rex v. Hardy, 24 Howell's St. out such restriction. Where no common 
Tr. 451 , 4.52, 453, 475 ; American Fur Co. object or motive is imputed, as in actions 
V. The United States, 2 Peters, 358, 365; for negligence, the declaration or admis- 
Crowninshield's case, 10 Pick. 497 ; Rex sion of one defendant is not .admittetl 
V. Hunt, 3 B. & Aid. 566 ; 1 East, P. C. against any but himself. Daniels v. 
97, § 38 ; Nichols v. Dowding. 1 Stark. 81. Potter, 1 M. & M. 501. [The acts of one 

2 Rex r. Hardy, supra. The declara- accomplice, so far as they are part of 
tions of one co-trespasser, where several the res gesfce only, are evidence against 
are jointly sued, may be given in evi- another. The flight of one is not evi- 
dence against himself, at whatever time dence of guilt of another. People v. 
it was made; but, if it was not part of Stanley, 47 Cal. 113.] 

the 1-es gesffe, its effect is to be restricted ^ Foster, 198 ; Rex v. Watson, 2 Stark. 

to the partv making it. Yet, in Wright 116, 141-147. 

V. Court. 2 "C. & P. 232, which was an ac- * Rex v. Hardy, 24 Howell's St. Tr. 

tion for false imprisonment, the declara- 703, per Eyre, C. J. [Reg. v. Blake, 6 

tion of a co-defendant, showing personal Q. B. 126]. 

malice, though made in the absence of 



136 



LAW OF EVIDENCE. 



[part II. 



similar cases, the act or declaration of eacli member, in further- 
ance of the common object of the association, is the act of all. 
By the very act of association, each one is constituted the agent 
of all.i While the being thus created exists, it speaks and acts 
only by the several members ; and, of course, when that existence 
ceases by the dissolution of the firm, the act of an individual 
member ceases to have that effect; binding himself alone, except 
so far as by the articles of association or of dissolution it may 
have been otherwise agreed.^ An admission, however, by one 
partner, made after the dissolution, in regard to business of the 
firm, previously transacted, has been held to be binding on the 
firm.^ 



1 Sandilands v. Marsh, 2 B. & Aid. 
673, 678, 679; Wood v. Braddick, 1 
Taunt. 104, and Petherick i-. Turner et al. 
there cited; Rex i'. Hardwick, 11 East, 
578, 589 ; Van Keimsdyk v. Kane, 1 Gall. 
630, 635 ; Nichols i'. Dowding, 1 Stark. 
81 ; Hodempyl o. Vinserhoed, Chitty on 
Bills, 618, n. (2); Colt v. Tracy, 8 
Conn. 268. [In an action against two 
as alleged copartners, evidence of state- 
ments and declarations wliicli would be 
admissible only upon tlie assumption of 
the existence of tiie copartnership, is in- 
competent to prove such copartnership. 
Dutton V. Woodman, 9 Cush. 255; All- 
cott V. Strong, 9 Cush. 323. And evi- 
dence to show the continuance of a part- 
nership after it has been dissolved, with 
notice to the parties, must be as satisfac- 
tory as tliat required to show its estab- 
lishment. Allcott V. Strong, ut supra.} 

2 Bell V. Morrison, 1 Peters, 371; Bur- 
ton V. Issitt, 5 B. & Aid. 267. 

s This doctrine was extended by Lord 
Brougliam, to tlie admission of payment 
to the partner after the dissolution. 
Pritchard i-. Draper, 1 lluss. & M. 191, 
199, 2U0. See Wood v. Braddick, 1 Taunt. 
104 ; Whitcomb (•. Whiting, 2 Doug. 652 ; 
approved in Mclntire r. Oliver, 2 Hawks, 
2t)9 ; Beitz v. Puller, 1 McCord, 541 ; C-ady 
V. Shepiierd, 11 Pick. 400; Van Reimsdyk 
f. Kane, 1 Gall. 635, 636. See also Parker 
V. Merrill, 6 Grcenl. 41 ; Martin v. Root, 
17 Mass. 223, 227; Vinal v. Burrill, 16 
Pick. 401 ; Lefavour v. Yandes, 2 Blackf. 
240 ; Briilge i;. Gray, 14 I'ick. 55 ; Gay v. 
Bowen, 8 Met. lOU; Mann v. Locke, 11 
N. II. 246, to the same point. [See 
also Loomis v. Loomis, 26 Vt. 198 ; Pierce 
r. Wood, 3 Foster, 519 ; Drumright i'. 
Philpot, 16 Geo. 424. But wliere, after 
tiie dissolution of a copartnership, one 
partner assigned his interest in a partner- 



ship claim against the defendant to the 
other partner, in a suit on such claim 
brought in the name of both partners for 
the benefit of the assignee, the declarations 
of the assignor made after tlie assignment 
are not admissible in favor of the defend- 
ant. Gillighan v. Tebbetts, 33 Maine, 
300.] In New York, a different doctrine 
is established. Walden r. Siierburne, 15 
Joims. 409; Hopkins v. Banks, 7 Cowen, 
650 ; Clark v. Glcason, 9 Cowen, 57 ; Ba- 
ker V. Stackpole, Id. 420. So in Louisiana. 
Lambeth v. Vawter, 6 Rob. (La.) 127. 
See, also, in support of the text. Lacy v. 
McNeil, 4 Dowl. & Ry. 7. Whether the 
acknowledgment of a debt by a partner, 
after dissolution of tlie partnership, will 
be sufficient to take the case out of the 
statute of limitations, and revive the rem- 
edy against the others, has been very 
much controverted in this country ; and 
the authorities to the point are cimllicting. 
In England, it is now settled I)y Lord Ten- 
terden's Act (9 Geo. 4, c. 14), that such 
acknowledgment, or new promise, inde- 
pendent of the fact of part payment, shall 
not have such effect, except against the 
party making it. Tliis provision has been 
adopted in the laws of some of the United 
States. See Mnssachusetls, Rev. Sts. c. 
120, §§ 14-17 ; Vermont, Rev. Sts. c. 58, 
§§ 23, 27. And it has since been holden 
in England, where a debt was originally 
contracted witii a partnership, and more 
than six years afterwards, but within six 
years before action l)rouglit, the partner- 
ship having been dissolved, one partner 
maile a partial payment in respect of the 
debt, — that this barred the operation of 
the statute of limitations; although the 
jury found that he made the payment 
by concert with the plaintiffs, in the jaws 
of bankruptcy, and in fraud of his late 
partners. Goddard v. Ingram, 3 Ad. & 



CHAP, v.] 



HEAKSAY. 



137 



§ 113. Agents. A kindred principle governs in regard to the 
declarations of agents. The principal constitutes the agent his 



El. N. s. 8o9. The American cases seem 
to have turned mainly on the question, 
whether the admission of ttie existing in- 
debtment amounted to the making of a 
new contract, or not. The courts which 
have viewed it as virtually a new contract 
have held, that the acknowledgment of 
the deht by one partner, after the dissolu- 
tion of partnership, was not admissible 
against his copartner. This side of the 
question was argued b}' Mr. Justice Story, 
with his accustomed ability, in delivering 
the judgment of the court in Bell v. Mor- 
rison, 1 Peters, 307 et seq. ; where, after 
stating the point, he proceeded as follows : 
'' In the case of Bland (j. Haselrig, '2 Vent. 
151, where the action was against four 
upon a joint promise, and the ])lca of the 
statute of limitations was put in, and the 
jury found that one of the defendants did 
promise within six years, and that the 
others did not ; three judges, against Ven- 
tris, J., held that the plaintitt' could not 
have judgment against the defendant, who 
had made the promise. Tliis case has 
been explained upon the ground, that the 
verdict did not conform to the pleadings, 
and estal)lish a joint promise. It is very 
doubtful, upon a critical examination of 
the report, whether the opinion of the 
court, or of any of the judges, proceeded 
solely upon such ground. In Whitcomb 
V. Whiting, 2 Doug. 652, decided in 1781, 
in an action on a joint and several note 
brought against one of the makers, it was 
held, that proof of payment, by one of the 
others, of interest on the note and of part 
of the principal, within six years, took the 
case out of the statute, as against the de- 
fendant who was sued. Lord Mansfield 
said, ' payment by one is payment for all, 
the one acting virtually for all the rest ; 
and in the same manner, an admission by 
<one is an admission by all, and the law 
raises the promise to pay, when the debt is 
admitted to be due.' This is the whole rea- 
soning reported in the case, and is certainly 
not very satisfactory. It assumes that 
one party, who has authority to discharge, 
has necessarily, also, authority to charge 
the others ; that a virtual agency exists in 
each joint debtor to pay for the whole ; 
and that a virtual agency exists by analogy 
to charge the whole. Now, this very posi- 
tion constitutes the matter in controversy. 
It is true, that a payment by one does in- 
ure for the benefit of the whole ; but this 
arises not so much from any virtual agency 
for the whole, as by operation of law ; for 
the payment extinguishes the debt ; if 



such payment were made after a positive 
refusal or prohibition of the other joint 
debtors, it would still operate as an extin- 
guishment of the debt, and the creditor 
could no longer sue them. In truth, he 
who pays a joint debt, pays to discharge 
himself ; and so far from binding the 
others conclusively by his act, as virtually 
theirs also, he cannot recover over against 
them, in contribution, without such pay- 
ment has been rightfully made, and ought 
to charge them. When the statute has 
run against a joint debt, the reasonable 
presumption is that it is no longer a sub- 
sisting debt ; and, therefore, there is no 
ground on which to raise a virtual agency 
to pay that which is not admitted to ex- 
ist. But if this were not so, still tliere is a 
great difference between creating a vir- 
tual agency which is for the benefit of 
all, and one which is onerous and preju- 
dicial to all. The one is not a natural 
or necessary consequence from the other. 
A person may well authorize the payment 
of a debt for which he is now liable, and 
yet refuse to authorize a charge, where 
there at present exists no legal liability 
to pay. Yet, if the principle of Lord 
Mansfield be correct, the acknowledg- 
ment of one joint debtor will bind all 
the rest, even though they should have 
utterly denied the debt at the time when 
such acknowledgment was made. The 
doctrine of Whitcomby. Whiting has been 
followed in England in subsequent cases, 
and was resorted to in a strong manner, 
in Jackson v. Fairbank, 2 H. Bl. 340, 
where the admission of a creditor to prove 
a debt, on a joint and several note under 
a bankruptcj', and to receive a dividend, 
was held sufficient to charge a solvent 
joint debtor, in a several acti<m against 
him, in which he pleaded the statute, aa 
an acknowledgment of a subsisting debt. 
It has not, however, been received without 
hesitation. In Clark v. Bradshaw, 3 Esp. 
155, Lord Kenyon, at Nisi Piins, expressed 
some doubts upon it ; and the cause went 
off on another ground. And in Bradrani 
V. Wharton, 1 Barn. & Aid. 463, the case 
was very much shaken, if not overturned. 
Lord Ellenborough, upon that occasion 
used language, from which his dissatisfac- 
tion with the whole doctrine may be clearly 
inferred. ' This doctrine,' said he, ' of re- 
butting the statute of limitations, by an 
acknowledgment other than that of the 
party himself, began with the case of 
Whitcomb v. Whiting. By that decision, 
where, however, there was an express ac- 



138 



LAW OF EVIDENCE. 



[part n. 



representative, in the transaction of certain business ; whatever, 
therefore, the agent does, in the lawful prosecution of that busi- 



knowledgment, by an actual payment of a 
part of the debt by one of the parties, I am 
bound. But that case was full of hard- 
ships ; for tliis inconvenience may follow 
from it. Suppose a person liable jointly 
■with thirty or forty others, to a debt; he 
may liave actually paid it, he may have 
liad in his possession the document by 
which that payment was proved, but may 
have lost his receipt. Then, though this 
was one of the very cases which this stat- 
ute was passed to protect, he may still be 
bound, and his liability be renewed, b}' a 
random acknowledgment made by some 
one of the thirty or forty others, who may 
be careless of what mischief he is doing, 
and who may even not know of the pay- 
ment which has been made. Beyond that 
case, therefore, I am not prepared to go, 
so as to deprive a party of the advantage 
given him by the statute, by means of an 
implied acknowledgment.' In the Ameri- 
can courts, so far as our researches have 
extended, few cases have been litigated 
upon this question. In Smith v. Ludlow, 
6 Johns. 268, the suit was brought against 
both partners, and one of them pleaded 
the statute. Upon the dissolution of the 
partnership, public notice was given that 
the other partner was authorized to adjust 
all accounts ; and an account signed by 
him, after such advertisement, and within 
six years, was introduced. It was also 
proved, tiiat the plaintiff called on the 
partner, who pleaded the statute, before 
the commencement of the suit, and re- 
quested a settlement, and tliat he then 
admitted an account, dated in 1797, to 
have been made out by him; that he 
thought the account had been settled by 
the other defendant, in whose hands the 
books of partnersliip were ; and tliat he 
would see the other defendant on the sub- 
ject, and comnrunicate the result to the 
plaintiff. The court held that this was 
sufficient to take the case out of the stat- 
ute ; and said tliat, without any express 
authority, the confession of one partner, 
after the dissolution, will take a debt out 
of the statute. The acknowledgment will 
not, of itself, be evidence of an original 
debt ; for that would enable one party to 
bind the other in new contracts. But 
the original debt being proved or admitted, 
the confession of one will bind the other, 
60 as to prevent him from availing himself 
of the statute. Tfiis is evident, from tlie 
casis of Whitcoinb r. Whiting, and Jack- 
eon c. Fairbank ; iind it results necessarily 
from the power given to adjust accounts. 



The court also thought the acknowledg- 
ment of the partner, setting up the stat- 
ute, was sufficient of itself to sustain the 
action. This case has the peculiarity of 
an acknowledgment made by botli part- 
ners, and a formal acknowledgment by 
the partner who was authorized to adjust 
the accounts after the dissolution of the 
partnershij). There was not, therefore, a 
virtual, but an express and notorious 
agency, devolved on him, to settle the ac- 
count. The correctness of the decision 
cannot, upon the general view taken by 
the court, be questioned. In Roosevelt v. 
Marks, 6 Johns. Ch. 266, 291, Mr. Chan- 
cellor Kent admitted the authority of 
Whitcomb v. Whiting, but denied that of 
Jackson v. Fairbank, for reasons which 
appear to us solid and satisfactory. Upon 
some other cases in New York, we shall 
have occasion hereafter to connnent. In 
Hunt I'. Bridgham, 2 Pick. 581, the Su- 
preme Court of Massachusetts, upon the 
authority of the cases in Douglas, H. Black- 
stone, and Johnston, held, that a partial 
payment by the principal debtor on a note, 
took the case out of the statute of limita- 
tions, as against a surety. The court do 
not proceed to any reasoning to establish 
the principle, considering it as the result 
of the authorities. Shelton v. Cocke, 3 
Munford, 191, is to the same effect; and 
contains a mere annunciation of the rule, 
without any discussion of its principle. 
Simpson r. Morrison, 2 Bay, 533, pro- 
ceeded upon a broader ground, and as- 
sumes the doctrine of the case in 1 Taunt. 
104, hereinafter noticed, to be correct. 
Whatever may be the just influence of 
such recognitions of the principles of the 
English cases, in other States, as the doc- 
trine is not so settled in Kentucky, we 
must resort to such recognition only as 
furnishing illustrations to assist our rea- 
soning, and decide the case now as if it 
liad never been decided before. By the 
general law of partnership, the act of each 
partner, during the continuance of the 
partnership, and within the scope of its 
objects, binds all the others. It is con- 
sidered the act of each, and of all, result- 
ing from a general and mutual delegation 
of authority. Each partner may, there- 
fore, bind the partnership by his contracts 
in tiie partnersliip business; but he cannot 
bind it by any contracts bi-yond those lim- 
its. A dissolution, liowcvi-r, puts an end 
to the authority. By the force of its terms, 
it operates as a revocation of all power to 
create new contracts ; and the right of 



CHAP, v.] 



HEAESAY. 



139 



ness, is the act of the principal whom he represents. And, 
" where the acts of the agent will bind the principal, there his 



partners, as such, can extend no further 
than to settle the partnership concerns 
already existing, and to distribute the re- 
maining funds. Even this rigrlit niaj- be 
qualified, and restrained, by the express 
delegation of the whole authority to one 
of the partners. Tiie question is not, how- 
ever, as to the authority of a partner after 
the dissolution to adjust an admitted and 
subsisting debt ; we mean, admitted by 
the whole partnership or unbarred by the 
statute; but whether he can. by his sole 
act, after the action is barred by lapse of 
time, revive it against all the partners, 
without any new authority communicated 
to him for this purpose. We think the 
proper resolution of this point depends 
upon another; that is, wiiether the ac- 
knowledgment or promise is to be deemed 
a mere continuation of the original prom- 
ise, or a new contract, springing out of, 
and supported by, the original considera- 
tion. We tlunk it is the latter, both upon 
principle and authority ; and if so, as after 
the dissolution no one partner can create 
a new contract, binding upon the others, 
his acknowledgment is inoperative and 
void, as to them. There is some confu- 
sion in the language of the books, result- 
ing from a want of strict attention to the 
distinction here indicated. It is often 
said, that an acknowledgment revives the 
promise, when it is meatit, that it revives 
the debt or cause of action. The revival 
of a debt supposes that it has once been 
extinct and gone ; that there has been a 
period in which it had lost its legal use 
and validity. The act which revives it 
is what essentially constitutes its new be- 
ing, and is inseparable from it. It stands 
not by its original force, but by the new 
promise, which imparts vitality to it. 
Proof of the latter is indispensable, to 
raise the assumpsit, on which an action 
can be maintained. It was this view of 
the matter which first created a doubt, 
whether it was not necessary that a new 
consideration should be proved to support 
the promise since the old consideration 
was gone. That doubt has been over- 
come ; and it is now held, that the original 
consideration is sufficient, if recognized, 
to uphold the new promise, although the 
statute cuts it off, as a support for the old. 
What, indeed, would seem to be decisive 
on this subject is, that the new promise, 
if qualified or conditional, restrains the 
rights of the party to its own terms ; and 
if he cannot recover by those terms, he can- 
not recover ai all. If a person promise to 



pay, upon condition that the other do an 
act, performance must be shown, before 
any title accrues. If the declaration lays 
a promise by or to an intestate, proof of 
the acknowledgment of the debt by or to 
his personal representative will not main- 
tain the writ. Why not, since it estab- 
lishes the continued existence of the debt 1 
Tlie plain reason is, that the promise is a 
new one, by or to the administrator him- 
self, upon the original consideration ; and 
not a revival of the original promise. So, 
if a man promises to pay a pre-existing 
debt, barred by the statute, when he is 
able, or at a future day, his ability must 
be shown, or the time must be passed be- 
fore the action can be maintained. Why ? 
Because it rests on the new promise, and 
its terms must be complied with. We do 
not here speak of the form of alleging the 
promise in the declaration; upon which, 
perhaps, there has been a diversity of 
opinion and judgment ; but of the fact it- 
self, whether the promise ought to belaid 
in one way or another, as an absolute, or 
as a conditional, promise ; which may de- 
pend on the rules of pleading. This very 
point came before the twelve judges, in 
the case of Heyling v. Hastings, 1 Ld. 
Raym. 389, 421," in the time of Lord Holt. 
There, one of the points was, ' whether 
the acknowledgment of a debt within six 
years would amount to a new promise, to 
"bring it out of the statute ; and they were 
all of opinion that it would not, but that it 
was evidence of a promise.' Here, then, 
the judges manifestly contemplated the 
acknowledgment, not as a continuation of 
the old promise, but as evidence of a new 
promise ; and that it is tiie new promise 
which takes the case out of the statute. 
Now, what is a new promise but a new 
contract ; a contract to pay, upon a pre- 
existing consideration, which does not of 
itself bind the party to pay independently 
of the contract 1 So, in Boy dell v. Drum- 
mond, 2 Campb. 157, Lord EUenborough, 
with his characteristic precision, said : 
' If a man acknowledges the existence of 
a debt, barred by the statute, the law has 
been supposed to raise a new promise to 
pay it, and thus the remedy is revived.' 
And it may be affirmed, that the general 
current of the English as well as the 
American authorities conforms to this 
view of the operation of an acknowledg- 
ment. In Jones i'. Moore, 5 Binney, 578, 
Mr. Chief Justice Tilghman went into an 
elaborate examination of this very point ; 
and came to the conclusion, from a review 



140 



LAW OF EVIDE2TCE. 



[pABT n. 



representations, declarations, and admissions, respecting the sub- 
ject-matter, will also bind him, if made at the same time, and 



of all the cases, that an acknowledgment 
of the debt can only be considered as evi- 
dence of a new promise ; and he added, 
' I cannot comprehend the meaning of re- 
viving the old debt in any other manner, 
than by a new promise.' There is a class 
of cases, not yet adverted to, which mate- 
rially illnstrates the right and powers of 
partners, after the dissolution of the part- 
nership, and bears directly on the point 
under consideration. In Ilackley v. Pat- 
rick, 3 Johns. 530, it was said by the court, 
that 'after a dissoluti(m of the partnership, 
the power of one party to bind the others 
wholly ceases. There is no reason why 
this acknowledgment of an account should 
bind his copartners, any more than his 
giving a promissory note, in the name of 
the firm, or any other act.' And it was 
tlierefore held, that the plaintiff must pro- 
duce further evidence of tlie existence of 
an antecedent debt, before he could re- 
cover ; even though the acknowledgment 
was by a partner authorized to settle all 
the accounts of the tirm. Tiiis doctrine 
was again recognized by the same court, 
in Waklen v. Sherburne, 15 Johns. 409, 
424, although it was admitted that in 
Wood V. Braddick, 1 Taunt. 104, a differ- 
ent decision had been had in England. If 
this doctrine be well founded, as we think 
it is, it furnishes a strong ground to ques- 
tion the efKcacy of an aciinowledgnient to 
bind the partnersliip for any purpose. If 
it does not establish the existence of a 
debt against tlie partnership, why should 
it be evidence against it at alii If evi- 
dence, «//»ii(/e, of facts witiiin tiie reach of 
the statute, as the existence of a debt, 
be necessary before the acknowledgment 
binds, is not this letting in all the mis- 
chiefs against wliich the statute intended 
to guard tlie parties ; viz., tlie introduction 
of stale and dormant demands of long 
standing and of uncertain proof ? If the 
acknowledgment, per se, does not bind the 
other partners, where is the propriety of 
admitting i)ro()f of an antecedent debt, ex- 
tinguished by the statute as to tiiem, to 
be revived witiiout their consent ? It 
Bcems dilTicul t to find a satisfactory reason 
why an acknowledgment should raise a 
new promise, wlien the consideration, 
upon wiiich alone it rests, as a legal obliga- 
tion, is not coupled witli it in such a sliape 
as to bind tlie parties ; tliat the parties are 
not bouml by tlie admission of the dchi, as 
a debt, but are liound by tlie acknowledg- 
ment of the debt, as a promise, upon ex- 
trinsic proof. The doctrine in 1 Taunt. 



104, stands upon a clear, if it be a legal, 
ground ; that, as to the things past, the 
partnership continues, and always must 
continue, not withstanding the dissolution. 
That, however, is a matter which we are 
not prepared to admit, and constitutes the 
very ground now in controversy. The 
light in which we are disposed to consider 
this question is, that after a dissolution of 
a partnership, no partner can crea t e a cause 
of action against the other partners, except 
by a new authority communicated to him 
for that purpose. It is wholly immaterial 
what is the consideration which is to raise 
such cause of action, — whether it be a sup- 
posed pre-existing debt of the partnership, 
or any auxiliary consideration which 
might prove beneficial to them. Unless 
adopted by them, they are not bcwnd by 
it. When the statute of limitations has 
once run against a debt, the cause of action 
against the partnership is gone. The ac 
knowledgment, if it is to operate at all, is 
to create a new cause of action ; to revive 
a debt which is extinct ; and thus to give 
an action, which lias its life from the new 
promise implied by law from such an ac- 
knowledgment, and operating and limited 
by its purport. It is, then, in its essence, 
the creation of a new riglit, and not the 
enforcement of an old one. We think, 
that the power to create such a right does 
not exist after a dissolution of the partner- 
ship in any partner." 

It is to be observed, that in this opinion 
the court were not unanimous ; and that 
the learned judge declares tiiat the major- 
ity were " principally, though not ex- 
clusively, iiiHuenced by the course of 
decisions in Kentucky," where the action 
arose. [VVhitcomb v. Wiiiting and Jack- 
son f. Fairbank are not now regarded with 
much consideration in the English courts, 
Davies v. Edwards, G Eng. l! & Eq. 520; 
and they are regarded with still less in the 
courts of this country. Van Kuren v. 
Parmelee, 2 Comst. (N.' Y.) 528. See also 
Angell on Limitations, 6th ed. § 21)0.) A 
similar view of tiie question has been 
taken by the courts of Peniisi/lranid, both 
before and since the decision of Bell v. 
Morrison ; Levy v. Cadet, 17 Serg. & 
Haw. 127 ; Seariglit v. Craighead, 1 1'enn. 
l;J5 ; and it has been followed by the 
('Oiirts of Iiidiatui. Yaiides v. Lefavour, 
2 Blackf. ;]71. Other judges have viewed 
such admissions not as going to create a 
new contract, but as mere acknowledg- 
ments of the continued existence of a debt 
previously created, thereby repelling the 



CHAP, v.] 



HEAHSAY. 



141 



constituting part of the res gestcey ^ They are of the nature 
of original evidence, and not of hearsay ; the representation or 
statement of the agent, in such cases, being the ultimate fact to 
be proved, and not an admission of some other fact.^ But, it 
must be remembered, that the admission of the agent cannot 
always be assimilated to the admission of the principal. The 
party's own admission, whenever made, may be given in evidence 
against him ; but the admission or declaration of his agent binds 
him only when it is made during the continuance of the agency 
in regard to a transaction then depending et dum fervet opus. 
It is because it is a verbal act, and part of the res gestce, that it is 
admissible at all ; and, therefore, it is not necessary to call the 
agent himself to prove it ; ^ but, wherever what he did is admissi- 
ble in evidence, there it is competent to prove what he said about 
the act while he was doing it ; * and it follows, that, where his 



presumption of payment, resulting from 
lapse of time, and thus taking tlie ease out 
of tlie operation of tlie statute of limita- 
tions. To this effect are White y. Hale, 3 
Pick. 291 ; Martin v. Hoot, 17 Mass. 222, 
227; Cadv v. Shepherd, 11 Pick. 400; 
Vinal V. Burrill, 16 Pick. 401 ; Bridge 
V. Gray, 14 Pick. 61 ; Patterson v. Choate, 
7 Wend. 441 ; Hopkins v. Banks, 7 
Cowen, 0-50 ; Austin v. Bostwick, 9 Conn. 
496 ; Greenleaf v. Quincy, 3 Fairf. 11 ; 
Mclntire v. Oliver, 2 Hawks, 209 ; Ward 
V. Howell, 5 Har. & Johns. 60 ; Fisher v. 
Tucker, 1 McCord, Ch. 175; Wlieelock 
V. Doolittle, 3 Washb. Vt. 440. In some 
of the cases a distinction is strongly taken 
between admissions which go to establish 
the original existence of the debt, and 
those wliicli only show that it has never 
been paid, but still remains in its original 
force ; and it is held, that before tlie 
admission of a partner, made after the 
dissolution, can be received, the debt 
must first be proved, aliunde. See 0\v- 
ings V. Low, 5 Gill. & Jolms. 134, 144; 
Smith V. Ludlow, 6 Johns. 267 ; Patterson 
V. Choate, 7 Wend. 441, 445; Ward v. 
Howell, Fisher v. Tucker, Hopkins v. 
Banks, Vinal v. Burrill, ubi suprn ; Shel- 
ton V. Cocke, 3 Munf. 197. In Austin v. 
Bostwick, the partner making the admis- 
sion had become insolvent ; but this was 
held to make no difference, as to the 
admissibility of his declaration. A dis- 
tinction has always been taken between ad- 
missions by a partner after the dissolution, 
but before tlie statute of limitations has 
attached to the debt, and those made 
afterwards ; the former being held receiv- 



able, and the latter not. Fisher v. Tucker, 
1 McCord, Ch. 175. And see Scales v. 
Jacob, 3 Bing. 638 ; Gardner v. McMahon, 
N. s. 3 Ad. & El. 566. See f urtiier on the 
general doctrine, post, § 174, n. In all 
cases where the admission, whether of a 
partner or other joint contractor, is re- 
ceived against his companions, it must 
have been made in good faith. Coit v. 
Tracy, 8 Conn. 268. See also Chardon v. 
Oliphant, 2 Const. 685; cited in Coll- 
yer on Partn. 236, n. (2d Am. ed.). It 
may not be useless to observe, that Bell 
V. Morrison was cited and distinguished, 
partly as founded on the local law of Ken- 
tucky, in Parker v. Merrill, 6 Greenl. 47, 
48 ; and in Greenleaf v. Quincy, 3 Fairf. 
11; and that it' was not cited in the 
cases of Patterson v. Choate, Austin v. 
Bostwick, Cady v. Shepherd, Vinal v. 
Burrill, and Yandes v. Lefavour, though 
these were decided subsequent to its pub- 
lication. 

1 Story on Agency, §§ 134-1.37. 

2 1 Pliil. Evid. 381. 

5 Doe V. Hawkins, 2 Ad. & El. n. 8. 
212 ; Sauniere v. Wode, 3 Harrison, 299. 

4 Garth v. Howard, 8 Bing. 451 ; Fair- 
lie V. Hastings, 10 Ves. 123, 127; Tlie 
jMechanics' Bank of Alexandria v. The 
Bank of Columbia, 5 Wheat. 336, 337 ; 
Langhorn v. Allnutt, 4 Taunt. 519, per 
Gibbs, J. ; Hannay v. Stewart, 6 AVatts, 
487, 489; Stockton v. Demuth, 8 Watts, 
39; Story on Agency, 126, 129, n. (2); 
Woods V. Banks, 14 N. H. 101 ; Cooiey v. 
Norton, 4 Cush. 93. In a case of libel 
for damages, occasioned by collision of 
ships, it was held that the admission of 



142 



LAW OF EVIDEN"CE. 



[PAET n. 



right to act in the particular matter in question has ceased, the 
principal can no longer be affected by his declarations, they being 
mere hearsay .^ 

§ 114. Declarations of agents. It is to be observed, that the rule 
admitting the declarations of the agent is founded upon the legal 
identity of the agent and the principal ; and therefore they bind 
only so far as there is authority to make them.^ Where this 



the master of the ship proceeded against 
might well be articulated in the libel. 
The Manchester, 1 W. Kob. 62. But it 
does not appear, in the report, whether 
the admission was made at the time of 
the occurrence or not. [Tiie declarations 
of the master concerning the contract of 
the steamer, are admissible in a suit 
against tlie owners. The Enterprise, 2 
Curtis, C. C. 317.] The question has 
been discussed, whether tliere is any 
substantial distinction between a written 
entry and an oral declaration by an 
agent, of the fact of his having received 
a particular rent for his employer. The 
case was one of a sub-agent, employed 
by a steward to collect rents, and tlie 
declaration offered in evidence was, " M. 
N. paid me the half-year's rent, and here 
it is." Its admissibility was argued, both 
as a declaration against interest, and also 
as made in the course of discharging a 
duty ; and the court inclined to admit it, 
but took time for advisement. Fursdon 
V. Clogg, 10 M. & W. 572 ; infra, § 149. 
See also Kegina ;;. Hall, 8 C! & P. 358; 
Allen V. Denstone, Id. 700; Lawrence v. 
Thatcher, 6 C. & P. 069 ; Bank of Mun- 
roe V. Field, 2 Hill, 445 ; Doe v. Hawkins, 
2 Ad. & El. N. s. 212. Whether the dec- 
laration or admission of tlie agent made 
in regard to a transaction already past, 
but while his agency for similar objects 
still continues, will bind the principal, 
does not appear to liave been expressly 
decided ; but the weiglit of authority' is 
in the negiUive. See the ol)servations of 
Tindal, C. .!., in Garth v. Howard, supra. 
See also Mortimer v. McCallan, 6 iSI. & 
W. 58, 09, 73 ; Haven v. Brown, 7 Greenl. 
421, 424; Thalhimer v. Brinkcrhoff, 4 
Wend. 394 ; City Bank of Baltimore i'. 
Bateman, 7 Har. & .Johns. 104; Stewart- 
Bon V. Watts, 8 Watts, 392; Betham v. 
Benson, (iow. 45, 48, n. ; Baring v, Clark, 
19 rick. 220 ; I'arker r. Green, 8 Met. 
142, 143 ; I'lumer v. liriscoe, 12 ,Jur. .351 ; 
11 Ad. & El. N. 9. 40 (IJurnham v. Kills, 
39 Maine, 319. The declarations of the 
driver of a cow (Lesley v. Hudson Hiver 
K. U. Co., 17 X. V. 131), of the conductor 
(Grillin v. Montgomery K. 15. Co., 20 Geo. 



Ill), or engineer (Pobinson v. Fitchburg 
R. R. Co., 7 Gray (Mass.), 92) of a rail- 
way train, as to the mode in which an 
accident occurred, made after the occur- 
rence, are inadmissible as hearsay ; but 
the admissions of a like nature by the 
general agent or president of a company 
(Charlestown R. R. Co. v. Blake, 12 Rich. 
(S. C.) Law, 634), or of a baggage-master 
in answer to inquiries for lost baggage, 
— are admissible, as within the scope 
of their general duties. Moore i'. Conn. 
River R. R. Co., 6 Gray (Mass.), 430. See 
also Ins. Co. v. Woodruff, 2 l-)utch. (N. 
J.) 541, where the admissions of an in- 
surance agent, made after a loss, author- 
ized to receive premiums and deliver 
policies, as to the delivery of a policy, 
were held admissible. And see post, 
§ 114, n.]. Where tlie fraudulent repre- 
sentations of the vendor are set up in 
defence of an action for the price of 
land, the defence may be maintained by 
proof of such representations by the ven- 
dor's agent who effected the sale ; but 
it is not competent to inquire as to 
his motives or inducements for making 
them. Hammatt v. Emerson, 14 Shepl. 
308. 

1 Reynolds v. Rowley, 3 Rob. (La.) 
201 ; Stiles v. The Western Railroad Co., 
8 Met. 44. [The declarations of a son 
while employed in performing a contract 
for his services, made by him as agent 
for his father, are not admissible in evi- 
dence to prove the terms of the contract. 
Corbin v. Adams, Cush. 93. See Prin- 
tup V. Mitchell, 17 Geo. 558; Covington, 
&c. R. R. (^o. I'. Ingles, 15 B. Mon. 037 ; 
Tuttle V. Brown, 4 Gray, 457, 400. J 

2 [Thus where the cashier of a bank, 
being inquired of by the surety upon a 
note, said, that the note had l)een paid, 
and thereupon the surety released jirop- 
erty which he held to indemnify himself 
for any liability on the note, when in 
fact the note had not been j)aid, it was 
Jielil that these statements of the cashier 
were not within his authority, and were 
inadmissiV)le against the bank. Bank v. 
Steward, 37 Maine, 519. See also Runk 
V. Ten Eyck, 4 Zabr. 756.] 



CHAP, v.] HEAESAY. 143 

authority is derived by implication from authority to do a certain 
act, the declarations of the agent, to be admissible, must be part 
of the res gestce} An authority to make an admission is not 
necessarily to be implied from an authority previously given in 
respect to the thing to which the admission relates.^ Thus it has 
been held,^ that the declarations of the bailee of a bond, intrusted 
to him by the defendant, were not admissible in proof of the exe- 
cution of the bond by the bailor, nor of any other agreements 
between the plaintiff and defendant respecting the subject. The 
res gestce consisted in the fact of the bailment, and its nature ; 
and on these points only were the declarations of the agent iden- 
tified with those of the principal. As to any other facts in the 
knowledge of the agent, he must be called to testify, like any 
other witness.* 

§ 115. Entries by third persons. It is upon the same ground 
that certain entries, made hy third persons^ are treated as original 
evidence. Entries by third persons are divisible into two classes : 
first, those which are made in the discharge of official duty, and 
in the course of professional employment; and, secondly, mere 
private entries. Of these latter we shall hereafter speak. In 
regard to the former class, the entry, to be admissible, must be 
one which it was the person's duty to make, or which belonged 
to the transaction as part thereof, or which was its usual and 
proper concomitant.^ It must speak only to that which it was 
his duty or business to do, and not to extraneous and foreign 
circumstances.^ The party making it must also have had com- 

1 [By being part of the res gestce, is thority of the agent, when questioned by 
meant that such declarations are evi- the principal. Mussey v. Beecher, 3 
dence only where they relate to the Cush. 517 ; Brighara v. Peters, 1 Gray, 
identical contract that is the matter in 145 ; Trustees, &c. v. Bledsoe, 5 Ind. 
controversy. Dome v. Southwork Man. 133.] 

Co., 11 Cush. 205 ; Fogg i\ Child, 13 ^ The doctrine on the subject of con- 
Barb. 246. And see ante, § 113, n.] temporaneous entries is briefl}'' but lu- 

2 Piiil. & Am. on Evid. 402. As to the cidly expounded by Mr. Justice Parke, 
evidence of authority inferred from cir- in Doe d. Patteshall v. Turford, 3 B. & 
cumstances, see Story on Agency, § 87- Ad. 890. See also Poole v. Dicas, 1 Bing. 
106, 259, 2G0. (N. C.) 654 ; Pickering v. Bishop of Ely, 

3 Fairlie r. Hastings, 10 Ves. 123. 2 Y. & C. 249 ; Regina ;•. Worth, 4 Ad. & 
* Masters v. Abraham, 1 Esp. 375 El. n. s. 132. [Tlie book of minutes of 

(Day's ed.), and note (1) ; Story on a railroad company are admissible to 
Agency, §§ 135-143 ; Johnston v. Ward, prove what took place at a meeting of 
6 Esp. 47. [But the declarations of a the stockholders of the company. Black 
professed agent, however publicly made, v. Lamb, 1 Beasley, 108. So are the 
and although accompanied by acts, as by records of a hospital, sliowing the condi- 
an actual signature of the name of the tion and treatment of a patient. Town- 
principal, are not competent evidence in send v. Pepperell, 99 Mass. 40.] 
favor of third persons to prove the au- ^ Chambers v. Bernasconi, 1 C. & J. 



144 



LAW OF EVIDENCE. 



[part n. 



petent knowledge of the fact, or it must liave been part of his 
duty to have known it ; there must have been no particuhir 
motive to enter that transaction falsely, more than any other; 
and the entry must have been made at or about the time of the 
transaction recorded. In such cases, the entry itself is admitted 
as original evidence, being part of the res gestce. The general 
interest of the party, in making the entry, to show that he has 
done his official duty, has nothing to do with the question of its 
admissibility ; ^ nor is it material whether he was or was not com- 
petent to testify personally in the case.^ If he is living, and 
competent to testify, it is deemed necessary to produce him.^ But, 
if he is called as a witness to the fact, the entry of it is not thereby 
excluded. It is still an independent and original circumstance, to 
be weighed with others, whether it goes to corroborate or to im- 
peach the testimony of the witness who made it. If the party who 
made the entry is dead, or, being called, has no recollection of the 
transaction, but testifies to his uniform practice to make all his 
entries truly, and at the time of each transaction, and has no 
doubt of the accuracy of the one in question ; the entry, unim- 
peached, is considered sufficient, as original evidence, and not 
hearsay, to establish the fact in question.* 



451; s. c. 1 Tyrwh. 355; s. c. 1 Cr. 
Mees. & R. 347. In error. This limita- 
tion has not been applied to private en- 
trie.? against the interest of the party. 
Thus, where the payee of a note against 
A., B., & C, indorsed a partial payment 
as received from B., adding that the 
whole sum was originally advanced to A. 
■ only ; in an action by B. against A., to 
recover the money thus paid for his use, 
the indorsement made by the payee, who 
was dead, was held admissible to prove 
not only the payment of the money, but 
the otlier fact as to the advancement to 
A. Davies v. Humplireys, 6 Mees. & 
Welsb. 15:3; Marks v. Lahee, 3 Bing. 
N. C. 408. And in a subsequent case 
it was held, that, where an entry is ad- 
mitted as being against tlie interest of 
the party making it, it carries with it the 
•whole statement ; but that, if the entry- 
is made merely in tlie course of a man's 
duty, then it does not go beyond those 
matters which it was his duty to enter. 
Percival v. Nanson, 7 Kng. Law & Kq. 
638; 21 Law J. E.xch. n. s. 1 ; s. c. 7 
Exch. \. 

1 Per Tindal, C. J., in Poole v. Dicas, 
1 Bing. N. f. i\iA; Dixon i-. Cooper, 3 
Wils. 40 ; Benjamin v. Porteous, 2 H. Bl. 



590 ; Williams v. Geavos, 8 C. & P. 502 ; 
Augusta V. Windsor, 1 Applctou, 317, 
And see Doe v. Wittcomb, 15 Jur. 778. 
[But if the entry was not in the course 
of the duty of the person, and not against 
bis interest, it is not receivable. Webste 
V. Webster, 1 F. & F. 401 J 

2 Gicadow i-'. Atkin, 1 Cromp. & Mees. 
423, 424 ; s. c. 3 Tyrwh. 302, 303; Short 
V. Lee, 2 Jac. & Walk. 489. 

8 Nicliols V. Webb, 8 Wheat. 326 ; 
Welch V. Barrett, 15 Mass. 380 ; Wilbur 
V. Selden, Cowen, 162 ; Farmers' Bank 
V. Whitehill, 10 S. & R. 89, 90 ; Stokes v. 
Stokes, C Martin, n. s. 351 ; Herring v. 
Levy , 4 Martin, n. s. 383; Brewster v. 
Doan, 2 Hill, N. Y. 537 ; Davis v. Fuller, 
12 Vt. 178. 

•» Bank of Monroe v. Culver, 2 Hill, 
531 ; New Haven (^ounty Bank v Mitch- 
ell, 15 Conn. 20tJ ; Bank of Tennessee v. 
Cowen, 7 Humph. 70. See wfrn, §§ 430, 
437, n. (4). [Tlie protest of a notary- 
public, authenticated in the usual way 
i)y his signature and official seal, found 
among his ])apers after his deatli, is good 
scronddrij evitlence. I'orter r. Jud.son, 1 
(Jray, 175. | But upon a (lue.-^tion of the 
infancy of a .Jew, wlicre tlie time of 
his circumcision, which by custom is on 



CHAP. Y.] HEAESAY. 145 

§ 116. Entries by third persons. One of the earliest reported 
cases, illustrative of this subject, was an action of asstcmpsit, for 
beer sold and delivered, the plaintiff being a brewer. The evi- 
dence given to charge the defendant was, that, in the usual course 
of the plaintiff's business, the drayman came every night to the 
clerk of the brewhouse, and gave him an account of the beer 
delivered daring the day, which he entered in a book kept for 
that purpose, to which the draymen set their hands; and this 
entry, with proof of the drayman's handwriting and of his death, 
was held sufficient to maintain the action.^ In another case,^ 
before Lord Kenyon, which was an action of trover for a watch, 
where the question was, whether the defendant had delivered it 
to a third person, as the plaintiff had directed ; an entry of the 
fact by the defendant himself in liis shop-book, kept for that pur- 
pose, with proof that such was the usual mode, was held admissi- 
ble in evidence. One of the shopmen had sworn to the delivery, 
and his entry was offered to corroborate his testimony; but it 
was admitted as competent original evidence in the cause. So, 
in another case, where the question was upon the precise day of 
a person's birth, the account-book of the surgeon who attended 
his mother on that occasion, and in which his professional ser- 
vices and fees were charged, was held admissible, in proof of the 
day of the birth.^ So where the question was, whether a notice 

the eighth day after his birth, was pro- case any farther. Therefore, where the 

posed to be shown by an entry of tljg coals sold at a mine were reported daily 

fact, made by a deceased rabbi, whose by one of the workmen to the foreman, 

duty it was to perform the office and to who, not being able to write, employed 

make the entry ; the entry was held not another person to enter the sales in a 

receivable. Davis v. Lloyd, 1 Car. & Kir. book ; it was held, the foreman and the 

275. Perhaps because it was not made workman who reported the sale both 

against tlie pecuniary interest of the being dead, that the book was not admis- 

rabbi. [But it seems difficult, says Tay- sible in evidence in an action for the 

lor (Evidence, § 633), to reconcile this price of the coals. [Smith i'. Blakey, 36 

case with sound principle or with previ- L. J. Q. B. 136] ; Brain v. Preece, 11_M. 

ous decisions, and it has been lield in this & W. 773 [Lewis v. Kramer, 3 JNId. 265]. 
country that the entry of a baptism con- ^ L)igby v. Stednian, 1 Esp. 328. 

temporaneously made by a Roman Cath- ^ Higham i\ Ridgway, 10 East, 109. 

olic priest, in the discharge of his duty, See also 2 Smith's Lead. Cas. 183-197, n., 

is competent evidence, after his death, of and the comments of Bayley, B., and of 

the date of the baptism, the book being Vaughan, B., on tliis case, in Gleadow v. 

produced from the proper custody, al- Atkin, 1 Cromp. & Mees. -±10, 423, ■124, 

though he was not a sworn officer, and 427, and of Professor Parke, in the Lon- 

the record was not by law required to don Legal Observer for June, 1832, p. 229. 

be kept. Kennedy v. Doyle, 10 Allen It will be seen, in tliat case, that the fact 

'.>(Mass.), 161.] See' »;//•'(, § 147. of the surgeon's performance of the ser- 

y iJrioR >'■ L ord 'iorrington, 1 Salk. vice charged was abundantly proved by 

A 285; s. c. 2 Ld. Raym, 873; 1 Smitli's other testimony in the cause; and that 
VA'.Lead. Cas. 139. But the courts are not nothing remained but to prove the pre- 
disposed to carry the doctrine of this else time of performance ; a fact in which 

. TOL. I. IJ 



-M 



146 



LAW OF EVIDENCE. 



[part n. 



to quit had been served upon the ten*ant, the indorsement of ser- 
vice upon a copy of the notice by the attorney who served it, it 
being shown to be the course of business in his office to preserve 
copies of such notices, and to indorse the service thereon, was 
held admissible in proof of the fact of service.^ Upon the same 
ground of the contemporaneous character of an entry made in the 
ordinary course of business, the books of the messenger of a bank, 
and of a notary-public, to prove a demand of payment from the 
maker, and notice to the indorser of a promissory note, have also 
been held admissible .^ The letter-book of a merchant, party in 
the cause, is also admitted os, prima facie evidence of the contents 
of a letter addressed by him to the other party, after notice to 
such party to produce the original ; it being the habit of mer- 
chants to keep such a book.^ And, generally, contemporaneous 
entries made by third persons in their own books, in the ordinary 
course of business, the matter being within the peculiar knowl- 
edge of the party making the entry, and there being no apparent 
and particular motive to pervert the fact, are received as original 
evidence : ^ though the person who made the entry has no recol- 



the surgeon had no sort of interest. But, 
if It were not so, it is not perceived what 
difference it could have made, the prin- 
ciple of admissibility being the contem- 
poraneous character of the entry, as part, 
of the rrx qpstce. See also Herbert v. 
Tuckal, T. Kaym. 84 ; Augusta o. Wind- 
sor, 1 Appleton, 317 [Rawlins v. Rich- 
ards, 29 Beav. 370; Reg. v. St. Mary, 22 
L. J. M. C. 10!)]. 

1 Doe V. Turford, 3 Barn. & Ad. 890 ; 
Champncys v. Peck, 1 Stark. 326 ; Rex 
V. Cope, 7 C. & P. 720. [Where such an 
indorsement of service had been admitted 
to prove tlie fact of service of notice, the 
person wlio made the service and the 
indorsement being dead, parol declara- 
tions of Ills, contradicting the indorse- 
ment, were iield inadmissilde. Stapjdtou 
t;. Clough, 22 Eng. Law & Eq. 275.J 

2 Nichols V. Webb, 8 Wlieat. 32G ; 
Welch V. Barrett, 15 Mass. 380; Poole i'. 
Dicas, 1 Bing. (X. C.) 049; lialliday v. 
Martinett, 20 .Jolms. 108 ; I'lUtlcr v. 
Wrii;ht, 2 Wend. .3(i',> ; Hart v. Williams, 
LI. 013; Nichols r. Goldsmith, 7 Wend. 
IGO; New Haven Co. Bank (•.Mitchell. 
15 Conn. 2()0 ; Sheldon v. Benham, 4 
Hill, N. V. 123. [In an action against an 
infant for money paid by tlie phiintiff to 
a third person at tlie infant's request, for 
articles furnished the infant by such 
third person, the defence of infancy be- 



ing set up, the books of account and 
the testimony of such third person are 
admissible to show that the articles 
furnished the infant were necessaries. 
Swift V. Bennett, 10 Cush. 430, 439.] 

3 Pritt V. Eairclough, 3 Campb. 305; 
Hagedorn v. Reid, Id. 377. The letter- 
book is also evidence that the letters 
copied into it have been sent. But it is 
iiDt evidence of any other letters in it, 
than tliose which the adverse party has 
been required to produce. Sturge i;. 
Buchanan, 2 P. & D. 673 ; %. c. 10 Ad. & 
El. 598. 

4 Doe V. Turford, 3 B. & Ad. 890, per 
Parke, J.; Doe v. Robson, 15 East, 32; 
Goss V. Watlington, 3 Br. & B. 132; Mid- 
dieton V. Melton, 10 B. & Cr. 317 ; Marks' 
V. Lahce, 3 Bing. N. C. 408, 420, per 
Parke,.!.; Poole i\ Dicas, 1 Bing. N. C. 
049, 053, 054 ; Dow v. Sawver, 16 Shepl. 
117. In Doe v. Vowles, 1 M. & Rob. 216, 
the tradesman's bill, which was rejected, 
was not contemporaneous witii tlie fact 
done. Haddow v. Parry, 3 Taunt. 303 ; 
Whitnash i;. George, 8 B. & Cr. 556; 
Barker v. Ray, 2 Russ. 63, 76; Patton v. 
Craig, 7 S. & R. HO, 120 ; Farmers' Bank 
V. Wliiteliill, 16 S. & R. 89; Nourse v. 
IMcCay, 2 Hawle, 70 ; Clark v. Magruder, 
2 II. & J. 77; Richardson v. Cary, 2 
Rand. 87 ; Clark v. Wilmot, 1 Y. & Col. 
N. 8. 53. 



CHAP, v.] 



HEAESA.Y. 



147 



lection of the fact at the time of testifying ; provided he swears 
that he should not have made it, if it were not true.^ The same 
principle has also been applied to receipts, and other acts con- 
temporaneous with the payment, or fact attested.^ 
/"^ § 117. Shop-books. The admission of the party's own shop- 
hooks, in proof of the delivery of goods therein charged, the 
entries having been made by his clerk, stands upon the same 
principle which we are now considering. The books must have 
been kept for the purpose ; and the entries must have been made 
contemporaneous with the delivery of the goods, and by the per- 
son whose duty it was, for the time being, to make them. In 
such cases the books are held admissible, as evidence of the de- 
livery of the goods therein charged, where the nature of the sub 
ject is such as not to render better evidence attainable.^ 



1 Bunker v. Shed, 8 Met. 150 [Adams 
V. Coullard, 102 Mass. 167 ; even though 
the entries appeared to have heen al- 
tered, the rule excluding instruments con- 
taining unexplained alterations not being 
applicable to such entries]. 

2 Sherman v. Crosby, 11 Johns. 70; 
Holladay v. Littlepage, 2 Munf. 316; 
Prather v. Johnson, 3 H. & J. 487 ; Sher- 
man V. Atkins, 4 Pick. 283 ; Carroll v. 
Tyler, 2 H. & G. 54 ; Cluggage v. Swan, 
4 Binn. 150, 154. But the letter of a 
third person, acknowledging the receipt 
of merchandise of the plaintiff, was re- 
jected, in an action against the party 
who had recommended him as trust- 
worthy, in Longenecker v. Hyde, 6 Binn. 
1 ; and the receipts of living persons 
were rejected in Warner v. Price, 3 
Wend. 397 ; Cutbush v. Gilbert, 4 S. & 
R. 551 ; Spargo v. Brown, 9 B. & C 935. 
See infra, § 120. 

3 Pitman v. Maddox, 2 Salk. 690; 
s. c. Ld. Raym. 73"i; Lefebure v. Wor- 
den, 2 Ves. 54, 55 ; Glynn v. The Bank 
of England, Id. 40; Sterret v. Bull, 1 
Binn. 234. See also Tait on Evid. p. 276. 
An interval of one day, between the 
transaction and the entry of it in the 
book, has been deemed a valid objection 
to the admiss'bility of the book in evi- 
dence. Walter v. BoUman, 8 Watts, 
544. But the law fixes no precise rule 
as to the moment when the entry ought 
to be nijade. It is enough if it be made 
" at or near the time of the transaction." 
Curren v. Crawford, 4 S. & R. S, 5. 
Therefore, where the goods were deliv- 
ered by a servant during the day, and 
the entries were made by the master at 
night, or on the following morning, from 



the memorandums made by the servant, 
it was held sufficient. Ingraham v. Bock- 
ius, 9 S. & R. 285. But such entries, 
made later than the succeeding day, have 
been rejected. Cook v. Ashraead, 2 Miles, 
268. Where daily memoranda were kept 
by workmen, but the entries were made 
by the employer sometimes on the day, 
sometimes every two or three days, and 
one or two at longer intervals, they were 
admirted. Morris v. Briggs, 3 Cush. 342. 
[See also Barker v. Haskell, 9 Cush. 218 ; 
Hall V. Glidden, 39 Maine, 445. But see 
Kent V. Garvin, 1 Gray, 148.] Whether 
entries transcribed from a slate or card 
into the book are to be deemed original 
entries is not universally agreed. In 
Massachusetts, they are admitted. Faxon 
V. HoUis, 13 Mass. 427 [Smith v. San- 
ford, 12 Pick. 139 ; Barker v. Haskell, 9 
Cush. 218]. In Pennsijlhrmia, they were 
rejected in Ogden v. Miller, 1 Browne, 
147 ; but have since been admitted, 
where they were transcribed forthwith 
into the book, Ingraham v. Bockius, 9 
S. & R. 285; Patton v. Ryan, 4 Rawle, 
408 ; Jones v. Long, 3 Watts, 325 ; and 
not later, in the case of a mechanic's 
charges for his work, than the evening 
of the second day, Hartly v. Brooks, 6 
Whart. 189. But where several inter- 
mediate days elapsed before they were 
thus transcribed, the entries have been 
rejected. Porsythe v. Norcross, 5 Watts, 
432. But see Koch v. Howell, 6 Watts & 
Serg. 350. [Such entries are not written 
contracts, but the private memoranda of 
the party, becoming, with the aid of his 
suppletory oath, under an exception to 
the general rules, competent evidence 
of sale and delivery. Although compe- 



148 



LAW OF EVIDENCE. 



[part n. 



§ 118. Party's own entries. In the United States, this principle 
has been carried farther, and extended to entries made h/ the parti/ 
himself in his own shop-books.^ Though this evidence has some- 
times been said to be admitted contrary to the rules of the com- 
mon law, yet in general its admission will be found in perfect 
harmony with those rules, the entry being admitted only where 
it was evidently contemporaneous with the fact, and part of the 
res gestce. Being the act of the party liimself, it is received with 
greater caution ; but still it may be seen and weighed by the jury.^ 



tent and strong evidence as affecting the 
party offering tliem, yet they are not con- 
chisive, but may be explained, and, as it 
would seem, may be shown to have been 
erroneous. Thus, in an action for goods 
sold and delivered, if the plaintiif, to 
prove his case, produces his books of 
account, in which the goods are charged 
to a third person, he may then be per- 
mitted to show by parol that the goods 
were not sold to such third person, but 
were sold to the defendant, and were 
charged to such person at the defend- 
ant's request. James v. Spaulding, 4 
Gray, 451. It seems to have been ques- 
tioned whether the docket or book of 
accounts kept by an attorney is compe- 
tent evidence, in itself, of liis right to 
recover for his services. Hale's Ex'rs, 
V. Ard's Ex'rs, 12 Wright, Pa. St. 22; 
Briggs I'. Georgia, 15 Vt. 61. In Maine, 
such entries made by attorneys (Codman 
V. Caldwell, 31 Maine, 660) and physicians 
(Augusta V. Windsor, 1!) Maine, 317), for 
professional services, are admitted. So, 
likewise the latter, in New Jersey Bay v. 
Cook, 22 N. J. Law, 343; Toomer v. Gads- 
den, 4 Slrob. (S. C.) 193. And the party's 
cash-book of entries of money paid anil 
received is not admissible as evidence of 
a particular payment. Maine v. Harper, 
4 Allen, 115. | 

^ In the following States, the admis- 
sion of the party's own books and his 
own entries has been either expressly 
permitted, or recognized and regulated 
i)y statute; namely, Vermont, 1 Tolnian's 
Dig. 185; Connecticut, Kev. Code, 1849, 
til. 1, § 216; Delaware, St. 25 Geo. II., 
Rev. Code, 1829, p. 89; Man/land, as to 
gums under ten pounds in a year, 1 I)or- 
sey's Laws of Maryland, 73, 203 ; Vir- 
,,inia, Stat. 1819, 1 Rev. Code, c. 128, 
§§ 7-9; North Carolina, Stat. 1756, c. 57, 
§'2, 1 Rev. Code, 1836, c. 15 ; South Car- 
olina, St. 1721, Sept. 20; see Statutes 
at Large, vol. iii. p. 799, Cooper's ed. 1 
Bay, 43 ; Tennesiee, Statutes of Ten- 
nessee, by Carruthers and Nicholson, 



p. 131. In Louisiana and in Maryland 
(except as above), entries made by the 
partj' himself are not admitted. Civil 
Code of Louisiana, Arts. 2244, 2245 ; 
Johnson v. Breedlove, 2 Martin, n. s. 
508 ; Herring v. Levy, 4 Martin, n. s. 383 ; 
Caveher v. Collins, 3 Martin, 188; Mar- 
tinstein v. Creditors, 8 Rob. 6 ; Owings v. 
Henderson, 5 Gill & Joims. 124, 142. In 
all the other States, they are admitted at 
common Iav\, under various degrees of 
restriction. See Coggswell v. Dolliver, 2 
Mass. 217 ; Poultney i-. Ross, 1 Dall. 239 ; 
Lynch v. McHugo, 1 Bay, 33 ; Foster v. 
Sinkler, Id. 40 ; Slade v. Teasdale, 2 Bay, 
173; Lamb )•. Hart, Id. 362; Thomas v. 
Dyott, 1 Nott & McC. 186 ; Burnham r. 
Adams, 5 Vt. 313; Story on Cond. of 
Laws, 526, 527. 

2 The rules of the several States in re- 
gard to the admission of this evidence are 
not perfectly uniform ; but, in what is 
about to be stated, it is believed that they 
concur. Before the books of the party 
can be admitted in evidence, they are to 
be submitted to the inspection of tlie 
court, and if tliey do not appear to be a 
register of the diiWy business of tlie party, 
and to have been honestly and fairly kept, 
thej' are excluded. If they appear mani- 
festly erased and altered, in a material 
part, tliey will not be admitted until the 
alteration is explained. Churclunan v. 
Smith, 6 Wliart. 100. The form of keep- 
ing them, whether it be tliat of a journal 
or ledger, does not affect their admissibil- 
ity, however it may go to their credit to 
the jury. Coggswell v. Dolliver, 2 Mass. 
217; Prince v. Smith, 4 jNIass. 455, 457 ; 
Faxon u. Hollis, 13 Mass. 427 ; Rodman 
V. Hoops, 1 Dall. 85; Lynch v. McHugo, 
1 Ray, 33; Foster i-. Sinkler, Id. 40; 
Slade V. Teasdale, 2 Bay, 173 ; Tiiomas v. 
Dvott, 1 Nott & MeC. 186; Wilson v. 
Wilson, 1 Halst. 95; Swing v. Sparks, 2 
llalst. 59; Jones v. DeKay, Pennington, 
695 ; Cole v. Anderson, 3 Halst. 68 ; 
Mathes v. Robinson, 8 Met. 269. [Nor 
can tlie entries be invalidated by proof 



CHAP, v.] 



HEARSAY. 



149 



§ 119. Same subject. But, if the American rule of admit- 
ting the party's own entries in evidence for him, under the 



that several years previous to the date of 
the entries tlie party makina; the entries 
had kept two books of original entries, in 
whicli he charged the same articles at dif- 
ferent prices. Gardner v. Way, 8 Gray, 
]89.] If the books appear free from 
fraudulent practices, and proper to be laid 
before the jury, the party himself is then 
required to make oath, in open court, 
that tlicy are the books in which the 
accounts of his ordinary business transac- 
tions are usually kept, Frve v. Barker, 2 
Pick. 6-5; Taylor v. Tucker, 1 Kelly, 
233 ; and that the goods therein charged 
were actually sold and delivered to, and 
the services actually performed for, the 
defendant. Dwinel v. Pottle, 1 Redingt. 
167. [And where goods are delivered by 
one partner and the entries are made by 
another, each partner may testify to his 
part of the transaction, and the entries 
niav then be admitted. Harwood v. 
Mulry, 8 Gray, 250.] An affidavit to an 
account, or bill of particulars, is not ad- 
missible, Wagoner v. Richmond, Wright, 
173 ; unless made so by statute. Whether, 
if the party is abroad, or is unable to 
attend, the court will take his oath under 
a commission, is not perfectly clear. 
The opinion of Parker, C. J., in 2 Pick. 
67, was against it ; and so is Nicholson v. 
Witliers, 2 McCord, 428 ; but in Spence v. 
Saunders, 1 Bay, 119, even his affidavit 
was deemed sufficient, upon a writ of in- 
quiry, the defendant having suffered judg- 
ment by default. See also Douglas v. 
Hart, 4 McCord, 257 ; Furman v. Peay, 2 
Bail. 394. He must also swear that the 
articles therein charged were actually de- 
livered, and tlie labor and services actually 
performed ; that the entries were made at 
or about the time of the transactions, and 
are the original entries thereof ; and that 
the suras charged and claimed have not 
been paid. 3 Dane's Abr. c. 81, art. 4, 
§§ 1, 2 ; Coggswell v. DoUiver, 2 Mass. 
217 ; Ives v. Niles, 5 Watts, 324. [As 
neither an executor or insane person, nor 
any person not actually delivering the 
articles sold or the work performed, or 
seeing them sold or the work performed, 
can make an oath to the delivery or per- 
formance, if such an oath were necessary, 
there might be a failure of justice. The 
principle of the rule does not seem to 
require any such oath. If the books are 
tlie regular books of account, and contain 
entries, customarily made, at the time of 
the delivery, the charge itself is evidence 
of delivery. It is one step showing that 



a sale took place. It is a record which 
implies delivery and other previous acts.] 
If the party is dead, his books, though 
rendered of much less weight as evidence, 
may still be offered by the executor or 
administrator, he making oath that they 
came to his liands as the genuine and 
only books of account of the deceased ; 
that, to the best of his knowledge and 
belief, the entries are original and con- 
temporaneous with the fact, and the debt 
unpaid ; with proof of the party's hand- 
writing. Bentley v. Hollenback, Wright, 
169 ; McLellan o. Crof ton, Greenl. 307 ; 
Prince v. Smith, 4 Mass. 4-55 ; Odell v. 
Culbert, 9 W. & S. 66. If the party has 
since become insane, the book may still 
be admitted in evidence, on proof of the 
fact, and that the entries are in his hand- 
writing, with the suppletory oath of his 
guardian. And whether the degree of 
insanity, in the particular case, is such 
as to justify the admission of the book, 
is to be determined by the judge, in his 
discretion. Holbrook v. Gay, 6 Cush. 
215. The book itself must be the regis- 
try of business actually done, and not of 
orders, executory contracts, and things 
to be done subsequent to the entry. 
Fairchild v. Dennison, 4 Watts, 258 ; 
Wilson V. Wilson, 1 Halst. 95 ; Bradley 
V. Goodyear, 1 Day, 104, 106 ; TerriU v. 
Beecher, 9 Conn. 344, 348, 349; and the 
entry must have been made for the pur- 
pose of charging the debtor with the 
debt ; a mere memorandum, for an}' other 
purpose, not being sufficient. Thus, an 
invoice-book, and the memorandums in 
the margin of a blank check-book, show- 
ing the date and tenor of the checks 
drawn and cut from the book, have been 
rejected. Cooper v. Morrell, 4 Yates, 
341; Wilson v. Goodin, Wright, 219. 
But the time-book of a day-laborer, though 
kept in a tabular form, is admissible ; the 
entries being made for the apparent pur- 
pose of charging the person for whom the 
work was done. Mathes v. Robinson, 8 
Met. 269. [In an action by a laborer 
against his employer, the time-book of the 
employer, kept in a tabular form, in which 
the days the plaintiff worked are set 
down, is not admissible in evidence with 
the defendant's suppletory oath, to show 
that the plaintiff did not work on certain 
days ; it being a book of credits and not 
of charges, and it not being competent to 
show that the plaintiff did not work on 
certain days by the defendant's omission 
to give credit for work on those days. 



150 



LAW OF EVIDENCE. 



[PAUT n. 



limitations mentioned below, were not in accordance with the 
principles of the common law, yet it is in conformity with those 



Morse v. Potter, 4 Gray, 202.] If the 
book contains marks, or there be other 
evidence showhig that the items have 
been transferred to a journal or ledger, 
these books also must be produced. Prince 
V. Svvctt, 2 Mass. 569. The entries, also, 
must be made contemporaneously with 
the fact entered, as has been already 
stated in regard to entries made by a 
clerk. Supra, § 117, and n. (1). Entries 
tiius made are not, however, received 
in all cases as satisfactory proof of the 
charges ; but only as proof of things 
which, from their nature, are not gener- 
ally susceptible of better evidence. Watts 
V. Howard, 7 Met. 478. They are satis- 
factory proof of goods sold and delivered 
from a shop, and of labor and services 
personally performed, Case v. Potter, 8 
Johns. 211 ; Vosburg v. Thayer, 12 Johns. 
2(31 ; Wilmer v. Israel, 1 Browne, 257 ; 
Ducoign V. Schreppel, 1 Yeates, 347 ; 
Spence v. Saunders, 1 Bay, 119; Charl- 
ton V. Lawry, Martin (N. C), 26; Mitch- 
ell V. Clark, Id. 25 ; Easby v. Aiken, 
Cooke, 388 ; and, in some States, of small 
sums of money, Coggsvvell v. DoUiver, 
2 Mass. 217 ; Prince v. Smith, 4 Mass. 
455; 3 Dane's Abr. c. 81, art. 4, §§ 1, 2; 
Craven v. Shaird, 2 Halst. 345. [Meals 
furnished to an employer and his ser- 
vants, from day to day, are a proper sub- 
ject of book-charge. Tremain v. Edwards, 
7 Cush. 414. And see nho ante, § 117, n.] 
The amount, in Massachusetts and Maine, 
is restricted to forty shillings. Dunn v. 
Whitney, 1 Fairf. 9 ; Burns v. Fay, 14 
Pick. 8 ; Union Bank v. Knapp, 3 Pick. 
lOy. [Nor is the rule changed because 
an auditor, at the hearing before him, 
examined the book as a voucher for a 
greater sum. Turner v. Twing, 9 Cush. 
512.] While in North Carolina it is ex- 
tended to any article or articles, the 
amount whereof shall not exceed the 
sum of sixty dollars. Stat. 1837, c. 15, 
§§ 1,5. [In New Jersey they are inad- 
missible to prove money paid or money 
lent. Inslee v. Prall, 3 Zabr. 457.] But 
they have been refused admission to 
prove the fact of advertising in a news- 
paper, Hichards v. Howard, 2 Nott & 
McC 474; Thomas v. Dyott, 1 Nott & 
. McC. 180 ; of a charge of dockage of a 
vessel, Wilmer v. Israel, 1 Browne, 257 ; 
commissions on the sale of a vessel, 
Winsor v. Dilloway, 4 Met. 221 [an 
item in an account " seven gold watches, 
$308," Bustin v. Rogers, 11 Cush. 340; 
to whom credit was originally given, 



delivery being admitted ; Keith v. Kibbe, 
10 Cush. 36 ; the consideration of a prom- 
issory note, Rindge v. Breck, 10 Cush. 
43; see also Earle v. Sawyer, G Cush. 
142 ; three months' service in one item, 
Henshaw v. Davis, 5 Cush. 145 ; money 
lost by an agent's negligence, Chase 
V. Spencer, 1 Williams, 412 ; articles 
temporarily borrowed, Scott v. Brigham, 
Id. 561 ; building a fence, Towle v. 
Blake, 37 Maine, 208 ; any matter col- 
lateral to the issue of debt and credit 
between the parties, Batchelder v. San- 
born, 2 Foster, 325] ; labor of servants, 
Wright V. Sharp, 1 Browne, 344 ; goods 
delivered to a third person, Kerr v. Love, 
1 Wash. 172 ; Tenbrook v. Johnson, Coxe, 
288; Townley v. WooUey, Id. 377 
[Webster v. Clark, 10 Foster, 245] ; or to 
the party, if under a previous contract for 
their delivery at different periods, Loner- 
gan I'. Whitehead, 10 Watts, 249 ; general 
damages, or value. Swing v. Sparks, 2 
Halst. 59 ; Terrill v. Beecher, 9 Conn. 
348, 349 ; settlement of accounts, Prest 
V. Mercereau, 4 Halst. 268 ; money paid 
and not applied to the purpose directed, 
Bradley v. Goodyear, I Day, 104 ; a spe- 
cial agreement, Pritchard v. McOwen, 1 
Nott & McC. 131, n. ; Dunn v. Whitney, 
1 Fairf. 9 ; Green v. Pratt, 1 1 Conn. 205 ; 
or a delivery of goods under such agree- 
ment, Nickle V. Baldwin, 4 Watts & 
Serg. 290; an article omitted by mistake 
in a prior settlement, Punderson v. Shaw, 
Kirby, 150 ; the use and occupation 
of real estate, and the like, Beach v. 
Mills, 5 Conn. 493. See also Newton v. 
Hig^ins, 2 Vt. 366 ; Dunn v. Whitney, 
1 Fijff. 9. But after the order to deliver 
goods to a third person is proved by com- 
petent evidence aliunde, the delivery itself 
may be proved by the books and supple- 
tory oath of the plaintiff, in any case 
where such delivery to the defendant in 
person might be so proved. Mitchell v. 
Belknap, 10 Shcpl. 475. The charges, 
moreover, must be specific and particular ; 
a general charge for professional services, 
or for work and labor by a mechanic, 
without any specification but that of lime, 
cannot be supported by this kind of evi- 
dence. Lynch v. Petrie, 1 Nott & McC. 
130 ; Hughes v. Hampt(jn, 2 Const. 470. 
And regularly the prices ought to be 
specified ; in which case the entry is 
pnwayuciV evidence of the value, llaga- 
nian v. Case, 1 South. 370 ; Ducoign v. 
Schreppel, 1 Yeates, 337. But whatever 
be the nature of the subject, the trausac- 



CHAP, v.] 



HEARSAY. 



151 



of other systems of jurisprudence.^ In the administration of tlie 
Roman hiw, the production of a merchant's or tradesman's book 
of accounts, reguhirly and fairly kept in the usual manner, has 
been deemed presumptive evidence {semiplena prohatio 2) of the 
justice of his claim ; and, in such cases, the suppletory oath of 
the party Q'uramentum suppletivum) was admitted to make up 
the p>lena prohatio necessary to a decree in his favor.^ By the 
law of France, too, the books of merchants and tradesmen, regu- 
larly kept and written from day to day, without any blank, 

equity have constantly resorted to them 
in matters of account. Lodge v. Pritch- 
ard, 3 l)e G. M. & G. 908.] 

2 Tliis degree of proof is thus defined 
by Mascardus : " Non est ignorandura, 
probationera semiplenam earn esse, per 
quam rei gestae ./lofes aliqna tit judici ; non 
tamen tanta ut jure debeat in pronunci- 
anda sententia eam sequi. De Prob. vol. i. 
Quaest. 11, n. 1, 4. 

3 "Juramentjim (suppletivum) defer- 
tur ubicunque actor habet pro se — 
aliquas conjecturas, per quas judex in- 
ducatur ad suspicionem vel ad opinandum 
pro parte actoris." Mascardus, De Prob. 
vol. 3, Concl. 1230, n. 17. The civilians, 
however they may differ as to the degree 
of credit to be given to books of account, 
concur in opinion that tliey are entitled 
to consideration at the discretion of the 
judge. They furnish, at least, the conjee- 
tune mentioned by Mascardus ; and their 
admission in evidence, with the suppletory 
oath of the party, is thus defended by 
Paul Voet, De Statutis, § 5, c. 2, n. 9. 
" An ut credatur libris rationem, seu re- 
gistris uti loquuntur, mercatorum et arti- 
ficum, licet probationibus testium non 
juventur ? Pesponden, quamvis exemplo 
pernitiosum esse videatur, quemque sibi 
privata testatione, sive adnotatione fa- 
cere debitorcm. Quia tamen haec est mer- 
catorum cura et opera, ut debiti et creditl 
rationes diligenter conficiant. Etiam in 
eorum foro et causis, ex ajquo et bono est 
judicandum. Insuper non admisso aliquo 
litium aceelerandarum remedio, cominer- 
ciorum ordo et usus evertitur. Nequi 
enim omnes priesenti pecunia merces sibi 
comparant, neque cujusque rei venditioni 
testes adhiberi, qui pretia mercium nove- 
rint, aut expedit, aut congruum est. Non' 
iniquum videbitur illud statutum, quo 
domesticis talibus instrumentis additur 
fides, modo aliquibus adminiculis juven- 
tur." See also Hertius, De Collisione 
Legum, § 4, n. 68; Strykius, torn. 7, De 
8emiplena Probat. Disp. 1, c. 4, § 5; 
Menochius, De Presump. lib. 2, Presump. 
67, n. 20, and lib. 3, Presump. 63, n. 12. 



tion, to be susceptible of this kind of 
proof, must have been directly between 
the original debtor and the creditor ; the 
book not being admissible to establish a 
collateral fact. Mifflin v. Bingham, 1 
Dall. 276, per McKean, C. J. ; Kerr v. 
Love, 1 Wash. 172 ; Deas v. Darby, 1 
Nott & McC. 436; Poulteney v. Ross, 1 
Dall. 238. Though books, such as have 
been described, are admitted to be given 
in evidence, with tlie suppletory oath of 
the party, yet his testimony is still to be 
weiglied by the jury, like tliat of anj' 
other witness in tlie cause, and his reputa- 
tion for truth is equally open to be ques- 
tioned. Kitchen v. Tyson, 2 Murph. 314 ; 
Elder v. VVarfield, 7 Har. & Johns. 391. 
In some States, the books thus admitted 
are only those of shopkeepers, mechanics, 
and tradesmen ; tliose of other persons, 
such as planters, scriveners, schoolmas- 
ters, &c., being rejected. Geter v. Martin, 
2 Bay, 173 ; Pelzer v. Cranston, 2 McC. 
328 ; Boyd v. Ladson, 4 McC. 76. Tlie 
subject of the admission of tlie party's own 
entries, with his suppletory oath, in the 
several American States, is very elabo- 
rately and fully treated in Mr. Wallace's 
note to the American edition of Smith's 
Leading Cases, vol. i. p. 142. [Where a 
party's books are admitted, their credit 
cannot be impeached by proof of the bad 
moral character of the party. Tomlinson 
V. Borst, 30 Barb. 42. It seems to be 
settled, tliat, if the party rely upon the 
credits in his adversary's book, he must 
take sucli admission in connection with 
counter debits. Biglovv v. Sanders, 22 
Barb. N. Y. 147. But according to the 
English practice he is not precluded from 
introducing evidence to impeach the 
items upon the debtor side of the account, 
while he claiuis the benefit of those upon 
the credit side. Rose v. Savory, 2 Bing. 
(N. C.) 145. See also Moorehouse v. New- 
ton, 3 De G. & Sm. 307.] 

1 [As long ago as 1609, Stat. 7, James I. 
c. V2, cited iti extenso by Taylor (Ev. 
641, A), clearly recognized tradesmen's 
shop-books as evidence, and courts of 



152 LAW OF EVIDENCE. [PAET II. 

when the tradesman has the reputation of probity, constitute a 
semi-proof, and with his suppletory oath are received as full proof 
to establish his demand.^ The same doctrine is familiar in the 
law of Scotland, by which the books of merchants and others, 
kept with a certain reasonable degree of regularity, satisfactory 
to tlie court, may be recei,ved in evidence, the party being allowed 
to give liis own oath "in supplement" of such imperfect proof. 
It seems, however, that a course of dealing, or other " pregnant 
circumstances," must in general be first shown by evidence aliunde, 
before the proof can be regarded as amounting to the degree of 
semiplena prohatio, to be rendered complete by the oath of the 
party.2 

§ 120. Entries by third persons. Returning now to the admis- 
sion of entries made by clerks and third persons, it may be re- 
marked that in most of, if not all, the reported cases, the clerk or 
person who made the entries was dead; and the entries were 
received upon proof of his handwriting. But it is conceived 
that the fact of his death is not material to the admissibility of 
this kind of evidence. There are two classes of admissible en- 
tries, between which there is a clear distinction, in regard to the 
principle on Avhich they are received in evidence. The one class 
consists of entries made against the interest of the party making 
them ; and these derive their admissibility from this circumstance 
alone. It is, therefore, not material when they were made. The 
testimony of the party who made them would be the best evi- 
dence of the fact ; but, if he is dead, the eutr}^ of the fact made 
by him in the ordinary course of his business, and against his 
interest, is received as secondary evidence in a controversy 
between third persons.^ The other class of entries consists of 
those which constitute parts of a chain or combination of transac- 
tions between the parties, the proof of one raising a presumption 
that another has taken place. Here, the value of the entry, as 
evidence, lies in this, that it was contemporaneous with the princi- 

1 1 Potliicron Obi., Part iv.c. 1, art.2, complete eviilencc." See .also Glassfonl 
.§4. By the Coile Napoleon, merchants' on Kvi<l. p. 550; Bell's Digest of Law* of 
books are required to he kept in a particu- Scotland, pp. 378, 8'.)8. 

lar manner therein prescribed, and none ^ Warren v. Greenville, 2 Str. 1129; 

others are admitted in evidence. Code de Middleton v. Meltou, 10 B. & C. 317; 

Commerce, Liv. 1, tit. 2 art. 8-12. Thompson i;. Stevens, 2 Nott & McC. 

2 Tait on Evidence, p. 273-277. This 41)3; Chase i;. Smith, 5 Vt. 656; Spiers 
degree of proof is tliere defineil as " not v. Morris, 9 Bing. 687 ; Alston v. Taylor, 
merely a suspicion, but sucli evidence as 1 llayw. 381, Z'db. 

produces a reasonable belief, though not 



CHAP, v.] HEARSAY. l53 

pal fact done, forming a link in the chain of events, and being 
jmrt of the res gestoe. It is not merely the declaration of the 
party, but it is a verbal contemporaneous act, belonging, not 
necessarily indeed, but ordinarily and naturally, to the principal 
thing. It is on this ground, that this latter class of entries is 
admitted ; and therefore it can make no difference, as to thfdr 
admissibility, whether the party who made them be living or 
dead, nor whether he was, or was not, interested in making them ; 
his interest going only to affect the credibility or weight of the 
evidence when received.^ 

§ 121. Indorsements of payment. The evidence of indebtment, 
afforded by the indorsement of the payment of interest, or a par- 
tial payment of the principal, on the back of a bond or other secu- 
rity, seems to fall within the principle we are now considering, 
more naturally than any other; though it is generally classed 
with entries made against the interest of the party. The main 
fact to be proved in the cases, where this evidence has been 
admitted, was the continued existence of the debt, notwith- 
standing the lapse of time since its creation was such as either to 
raise the presumption of payment, or to bring the case within the 
operation of the statute of limitations. This fact was sought to 
be proved by the acknowledgment of the debt by the debtor him- 
self ; and this acknowledgment was proved by his having actually 
paid part of the money due. It is the usual, ordinary, and well- 
known course of business, that partial payments are forthwith 
indorsed on the back of the security, the indorsement thus becom- 
ing part of the res gestce. Wherever, therefore, an indorsement 
is shown to have been made at the time it bears date (which will 
be inferred from its face, in the absence of opposing circum- 
stances) ,2 the presumption natm-ally arising is, that the money 
mentioned in it was paid at that time. If the date is at a period 
after the demand became stale, or affected by the statute of limi- 

1 This distinction was taken and clearly McLean, 492. In several cases, however, 

expounded by Mr. Justice Parke in Doe letters and receipts of third persons liv- 

d. Patteshall v. Turford, 3 B. & Ad. 890 ; ing, and within the reach of process, have 

cited and approved in Poole v. Dicas, been rejected. Longenecker v. Hyde, 6 

1 Bing. N. C. 654 [Stapylton v. Clough, Binn. 1. ; Spargo v. Brown, 9 B. & C. 935 ; 

22 Eng. Law & Eq. 275]. !See also supra, Warner v. Price, 3 Wend. 397 ; Cutbush 

§§ 115, 116 ; Cluggage v. Swan, 4 Binn. v. Gilbert, 4 S. & R. 551 [Reynolds v. 

lo4; Sherman l-. Crosby, 11 Johns. 70; Manning, 15 Met. 510]. 

Holladay v. Littlepage, 2 Munf. 316 ; 2 Smith v. Battens, 1 M. & Rob. 341. 

Prather v. Johnson, 3 H. & J. 487 ; Sher- See also Nichols v. Webb, 8 Wheat. 326; 

man v. Akins, 4 Pick. 283 ; Carroll v. Ty- 12 S. & R. 49, 87 ; 16 S. & R. 89, 91. 
ler, 2 H. & G. 54 ; James v. Wharton, 3 



154 LAW OF EVEDENCE. [PABT H. 

tations, the interest of tlie creditor to fabricate it would be so 
strong, as to countervail the presumption of payment, and require 
the aid of some other proof ; and the case would be the same, if 
the indorsement bore a date within that period, the instrument 
itself being otherwise subject to the bar arising from lapse of 
time.^ Hence tlie inquiry which is usually made in such cases, 
namely, whether the indorsement, when made, was against the 
interest of the party making it, that is, of the creditor ; which, in 
other language, is only inquiring whether it was made while his 
remedy was not yet impaired by lapse of time. The time when 
the indorsement was made is a fact to be settled by the jury ; 
and to this end the writing must be laid before them. If there 
is no evidence to the contrary, the presumption is that the 
indorsement was made at the time it purports to bear date ; and 
the burden of proving the date to be false lies on the other party .^ 
If the indorsement does not purport to be made contemporane- 
ously with the receipt of the money, it is inadmissible as part of 
the res gestce. 

§ 122. Same subject. This doctrine has been very much con- 
sidered in the discussions which have repeatedly been had upon 
the case of Searle v. Barrington.^ In that case, the bond was 
given in 1697, and was not sued until after the death of the 
obligee, upon whose estate administration was granted in 1723. 
The obligor died in 1710 ; the obligee probably survived him, 
but it did not appear how long. To repel the presumption of 
payment, arising from lapse of time, the plaintiff offered in evi- 
dence two indorsements, made upon the bond by the obligee him- 
self, bearing date in 1699 and in 1707, and purporting that the 

1 Turner v. Crisp, 2 Stra. 827 ; Rose v. plaintiff; but, on a motion to set tlie non- 
Bryant, 2 Campl). 321; Glynn v. The suit aside, the three other judges were of 
Bank of England, 2 Ves. 38, 43. See opinion tiuit the evidence ought to have 
also Whitney v. Bigelow, 4 Pick. 110; been left to the jury, the indorsement in 
Roseboom v. Billington, 17 Johns. 182; such cases being according to the usual 
Gibson V. Peebles, 2 McCord, 418. course of business, and perhaps in tiiis 

^ Per Taunton, J., in Smith v. Battens, case made with the privity of the obligor ; 

1 M. & Rob. .')4o. See also Hunt v. but on anotiier ground the motion was 

Masscy, 5 B. & Adolph. 002; Baker v. denied. Afterwards another action was 

Milburn, 2 Mees. & \V. 853 ; Sinclair v. brought, which was tried before Lord 

Bapgaley, 4 Mees. & W. 812; Anderson Rayniond, C. J., who admitted the evi- 

V. Weston, Bing. N. C. 206. dince of the indorsement; but to which 

3 There were two successive actions tlie defendant tiled a bill of exceptions. 

on the same bond between these parties. Tiiis judgment was affirmed on error in 

The first is reported in 2 Stra. 82G, 8 Mod. the Exchequer Chamber, and again in the 

278, and 2 Ld. Raym. 1370; and was House of Lords. See 2 Stra. 827 ; 3 Bro. 

tried before Pratt, 0. J., who refused to V. C. 5('3. The first case is most fully 

admit the indorsement, and nonsuited the reported in 8 Mod. 278 



CHAP, v.] HEAESAY. 'ISS 

interest clue at those respective dates had been then paid by the 
obligor. And it appears that other evidence was also offered, 
showing the time when the indorsements were actually made.^ 
The indorsements, thus proved to have been made at the times 
when they purported to have been made, were, upon solemn 
argument, held admissible evidence,* both by the judges in the 
Exchequer Chamber and by the House of Lords. The grounds 
of these decisions are not stated in any of the reports : but it 
may be presumed that the reasoning on the side of the prevaihng 
party was approved, namely, that the indorsement being made 
at the time it purported to bear date, and being according to the 
usual and ordinary course of business in such cases, and which it 
was not for the interest of the obhgee at that time to make, was 
entitled to be considered by the jury ; and that from it, in the 
absence of opposing proof, the fact of actual 'payment of the 
interest might be inferred. This doctrine has been recognized 
and confirmed by subsequent decisions.^ 

§ 123. Summary. Thus, we have seen that there are four 
classes of declaratio7is, which, though usually treated under the 
head of hearsay, are in truth original evidence ; the first class 
consisting of cases where the fact, that the declaration was made, 
and not its truth or falsity, is the point in question ; the second, 
including expressi6ns of bodily or mental feelings, where the 
existence or nature of such feelings is the subject of inquiry ; the 
third, consisting of cases of pedigree, and including the declara- 
tions of those nearly related to the party whose pedigree is in 
question ; and the fourth, embracing all other cases where the 
declaration offered in evidence may be regarded as part of the 

1 This fact was stated by Baylcy, B., on behalf of the creditor, shall be deemed 

as the result of his own research. See 1 sufficient proof to take tlie case out of the 

Cromp. & Mees. 421. So it was under- statute of limitations. Tlie same enact- 

stood to be, and so stated, by Lord Hard- ment is found in the laws of some of the 

wicke, in 2 Ves. 43. It may have consti- United States. 

tuted the" othercircumstantial evidence," ^ Bosworth v. Cotchett, Dom. Proc. 

mentioned in Mr. Brown's report, 3 Bro. May 6, 1«24 ; Phil. & Am. on Evid. 348; 

P. C. 594 ; which he literally transcribed Gleadow v. Atkin, 1 Cromp. & Mees. 

from the case, as drawn up by Messrs. 410; Anderson y. Weston, 6 Bing. N. C. 

Lutwyche and Faziikerley, of council for 296 ; 2 Smith's Lead. Cas. 197 ; Ad- 

the original plaintiff, for argument in the dams v. Seitzinger, 1 Watts & Serg. 243. 

House of Lords. See a folio volume of [But the admission of a payment at the 

original printed briefs, marked " Cases in time a note fell due, although signed by 

Parliament, 1728 to 1731," p. 529, in the both parties and indorsed upon the note at 

Law Library of Harvard University, in a period within the statute of limitations, 

which this case is stated more at large will not have the effect to remove the bar, 

than in any book of Reports. By Stat. 9 the effect being the same only as if made 

Geo. IV. c. 14, it is enacted, that no in- at the time the admitted payment waa 

dorsement of partial payment, made by or made. Hayes v. Morse, 8 Vt. 316. J 



156 LAW OF EVIDENCE. [PART H. 

res gestoe. All these classes are involved in the principle of 
the last ; and have been separately treated, merely for the sake 
of greater distinctness. 

§ 124. Principle of the rule of exclusion of hearsay evidence. 
Subject to these qualifications and seeming exceptions, the general 
rule of law rejects all hearsay reports of transactions, whether 
verbal or written, given by persons not produced as witnesses.^ 
The principle of this rule is, that such evidence requires credit to 
be given to a statement made by a person who is not subjected 
to the ordinary tests enjoined by the law for ascertaining the 
correctness and completeness of his testimony ; namely, that oral 
testimony should be delivered in the presence of the court or a 
magistrate, under the moral and legal sanctions of an oath, and 
where the moral and intellectual character, the motives and 
deportment of the witness can be examined, and his capacity 
and opportunities for observation, and his memory, can be tested 
by a cross-examination. Such evidence, moreover, as to oral 
declarations, is very liable to be fallacious, and its value is, there- 
fore, greatly lessened by the probability that the declaration was 
imperfectly heard, or was misunderstood, or is not accurately 
remembered, or has been perverted. It is also to be observed, 
that the persons communicating such evidence are not exposed 
to the danger of a prosecution for perjury, in which sometliing 
more than the testimony of one witness is necessary, in order to 
a conviction ; for where the declaration or statement is sworn to 
have been made when no third person was present, or by a per- 
son who is since dead, it is hardly possible to punish the witness, 
even if his testimony is an entire fabrication.^ To these reasons 
may be added considerations of public interest and convenience 
for rejecting hearsay evidence. The greatly increased expense 
and the vexation which the adverse party must incur in order to 
rebut or explain it, the vast consumption of public time tliereby 
occasioned, the multiplication of collateral issues for decision by 
the jury, and the danger of losing sight of the main question and 

1 "If," says Mr. Justice Buller, " the 205,206. Sce,a8 to tlielialjilityof words 

first speech were without oath, another to misconstruction, tlie remari<s of Mr. 

oath, that there wassucii speech, makes it Justice Foster, in his Discourse on High 

no more tlian a bare speaking, ami so of Treason, c. 1, § 7. The rule excluding 

no VJilue in a court of justice." Bull. N. hearsay is not of great antiquity. One of 

P. 294 [Lund v. Tyngsborough, 9 Cush. the earliest cases in which it was adminis- 

36, 401. tered, was that of Sampson i'. Yardley 

2riiil.&Am.onETid.2l7; IPhil.Evid. and Tothill, 2 Keb. 223, pi. 74, 19 Car. 2. 



CHAP, v.] ,- HEARSAY. 157 

of the justice of the case if this sort of proof were admitted, are 
considerations of too grave a character to be overlooked by the 
court or the legislature, in determining the question of changing 
the rule.^ 

§ 125. Declarations under oath. The rule applies, though the 
declaration offered in evidence was made upon oath, and in tlie 
course of a judicial proceeding, if the litigating parties are not 
the same. Thus, the deposition of a pauper, as to the place of 
his settlement, taken ex parte before a magistrate, was rejected, 
though the pauper himself had since absconded, and was not to 
be found.2 The rule also applies, notwithstanding no better evi- 
dence is to be found, and though it is certain, that, if the declara- 
tion offered is rejected, no other evidence can possibly be obtained ; 
as, for example, if it purports to be the declaration of the only 
eye-witness of the transaction, and he is since dead.^ 

§ 126. Exception. An exception to this rule has been con- 
tended for in the admission of the declarations of a deceased attest- 
ing toitness to a deed or will, in disparagement of the evidence 
afforded by his signature. This exception has been asserted, on 
two grounds : first, that as the party offering the deed used the 
declaration of the witness, evidenced by his signature, to prove 
the execution, the other party might well be permitted to use any 
other declaration of the same witness to disprove it ; and, secondly^ 
that such declaration was in the nature of a substitute for the loss 
of the benefit of a cross-examination of the attesting witness ; by 
which, either the fact confessed would have been proved, or the 
witness might have been contradicted, and his credit impeached. 
Both these grounds were fully considered in a case in the ex- 
chequer, and were overruled by the court : the first, because the 
evidence of the handwriting, in the attestation, is not used as a 

1 Mima Queen i'. Hepburn, 7 Cranch, ness at second-hand, and through several 
290, 296, per Marshall, C. J. successive relators, each only stating what 

2 Rex V. Nuneham Courtney, 1 East, he received from an intermediate relator, 
373 ; Rex v. Ferry Frystone, 2"East, 54 ; it is still admissible, if the original and in- 
Rex V. Eriswell, 3 T. R. 707-725, per termediate relators are all dead, and would 
Lord Kenyon, C. J., and Grose, J., whose have been competent witnesses if livmg, 
opinions are approved and adopted in Tait on Evid. pp. 430, 431. But the rea- 
Mima Queen v. Hepburn, 7 Cranch, 296. son for receiving hearsay evidence, in 

8 Phil. & Am. on Evid. 220, 221 ; IPhil. cases where, as is generally tlie case in 

Evid. 209, 210. In Scotland the rule is Scotland, the judges determine upon the 

otherwise ; evidence on the relation of facts in dispute, as well as upon the law, 

others being admitted, where the relator is stated and vindicated by Sir James 

is since dead, and would, if living, have Mansfield, in the Berkley Peerage case, 

been a competent witness. And if the re- 4 Campb. 415. 
lation has been handed down to the wit- 



158 



LAW OF EVIDElSrCE. 



[PAUT n. 



declaration by tlie witness, but is offered merely to show the fact 
that he put his name there, in the manner in wliich attestations 
are usually placed to genuine signatures ; and the second, chiefly 
because of the mischiefs which would ensue, if the general rule 
excluding hearsay were thus broken in upon. For the security 
of solemn instruments would thereby become much impaired, and 
the rights of parties under them would be liable to be affected at 
remote periods, by loose declarations of the attesting witnesses, 
which coidd neither be explained nor contradicted by the testi- 
mony of the witnesses themselves. In admitting such declara- 
tions, too, there would be no reciprocity ; for, though the party 
impeaching the instrument would thereby have an equivalent for 
the loss of his power of cross-examination of the living witness, 
the other party would have none for the loss of his power of re- 
examination.^ 



1 Stobartw.Dryden,! Mees. &W.615. 
[But the doctrine of tliis ease has been 
denied, and it has been held, that, on the 
production of a certified copy of a will 
and of the affidavit of the subscribing 
witnesses made at the time of probate, 
it is permissible to impeach the affidavit 
of one of the witnesses by showing con- 



tradictory statements made at other times, 
with a view to show that the will was 
never duly executed. Otterson v. Hofford, 
36 N.J. 129; TheReformed Dutch Church 
V. Ten Eyck, 1 Dutch. (N. J.) 40. So the 
bad character of the subscribing witness 
may be shown for the same purpose. 
Losse V. Losse, 2 Hill, N. Y. 609.] 



CHAP. VI.] JIATTEES OF GENERAL INTEREST. lo9 



CHAPTER VI. 

OF MATTERS OF PUBLIC AND GENERAL INTEREST. 

§ 127. "When hearsay admissible. Having thus illustrated the 
nature of hearsay evidence, and shown the reasons on which it is 
generally excluded, we are now to consider the cases in tohich 
this rule has been relaxed, and hearsay admitted. The exceptions, 
thus allowed, will be found to embrace most of the points of in- 
convenience, resulting from a stern and universal application of 
the rule, and to remove the principal objections which have been 
urged against it. These exceptions may be conveniently divided 
into four classes : first, those relating to matters of public and 
general interest ; secoyidly, those relating to ancient possessions ; 
thirdly, declarations against interest; fourthly, dying declara- 
tions, and some others of a miscellaneous nature ; and in this 
order it is proposed to consider them. It is, however, to be 
observed, that these exceptions are allowed only on the ground 
of the absence of better evidence, and from the nature and neces- 
sity of the case. 

§ 128. Matters of general interest. And first, as to matters of 
public and general interest. The terms public and general are 
sometimes used as synonymous, meaning merely that which con- 
cerns a multitude of persons.^ But, in regard to the admissibility 
of hearsay testimony, a distinction has been taken between them ; 
the term public being strictly applied to that wliich concerns all 
the citizens, and every member of the State ; and the term general 
being referred to a lesser, though still a large, portion of the com- 
munity. In matters of public interest, all persons must be pre- 
sumed conversant, on the principle that individuals are presumed 
to be conversant in their own affairs ; and, as common rights are 
naturally talked of in the community, what is thus dropped in 
conversation may be presumed to be true.^ It is the prevailing 

1 "Weeks u. Sparke, 1 M. & S. 690, per & S. 686, per Ld. Ellenborough ; The 
Bayley, J. Berkley Peerage case, 4 Campb. 416. 

2 Morewood v. Wood, 14 East, 320, n., per Mansfield, C. J. 
per Ld. Kenyon j Weeks v. Sparke, 1 M. 



160 LAW OF EVIDENCE. [PAKT 11. 

ciiiTent of assertion that is resorted to as evidence, for it is to 
this that every member of the community is supposed to be privy, 
and to contribute his share. Evidence of common reputation is, 
therefore, received in regard to public facts (a chxim of highway, 
or a right of ferrj^, for example), on ground somewhat similar to 
that on Avhich public documents, not judicial, are admitted ; 
namely, the interest which all have in their truth, and the con- 
sequent probability that they are true.^ In these matters, in 
which all are concerned, reputation from any one appears to be 
receivable ; but of course it is almost worthless, unless it comes 
from persons who are shown to have some means of knowledge ; 
such as, in the case of a highway, by living in the neighborhood : 
but the want of such proof of their connection with the suliject 
in question affects the value only, and not the admissibility, of the 
evidence. On the contrary, where the fact in controversy is one 
in which all the members of the community have not an interest, 
but those only who live in a particular district, or adventure in 
a particular enterprise, or the like, hearsay from persons wholly 
unconnected with the place or business would not only be of no 
value, but altogether inadmissible.^ 

§ 129. Rights of common. Thus, in an action of trespass qiiare 
dausum fregit^ where the defendant pleaded in bar a prescriptive 
right of common in the locus in quo, and the plaintiff replied, 
prescribing the right of his messuage to use the same ground for 
tillage with corn until the harvest was ended, traversing the 
defendant's prescription ; it appearing that many persons beside 
the defendant had a right of common there, evidence of reputa- 
tion, as to the plaintiff's right, was held admissible, provided it 
were derived from persons conversant with the neighborhood.^ 

1 1 Stfirk. Evid. 105; Price r. CurrcU, was licld suflicicnt plena prohatio, wlior- 
6 M. & W. 234. And see Kojes v. White, ever, from the nature of the case, better 
19 Conn. 250. evidence was not attainable : " ulii a coni- 

2 Crease v. Barrett, 1 Cromp. Mees. & niuniter aecidentibus, probatio ditlicilis 
Rose. 920, per Parke, B. [Persons living est, fania pleiiam sohH probationeni fa- 
out of sucli district are not presumed to cere ; ut in ])robatione filiationis." But 
know siicli fact, and cannot therefore be Mascardus deems it not sufticient, incases 
affected by proof of it. Dunbar i'. Muh-y, of peiliijree within the memory of man, 
8 Gray, 1(33] By the Roman law, repu- which he limits to fifty-six years, unless 
tatitm or common fame seems to have aided by other evidence, "tunc nempe 
l)een admissible in evidence, in all cases ; non sufRceret publica vox et fama, seJ 
but it was not generally deemed sufli- una cum ipsa deberet tractatus et nomi- 
cicnt proof, and, in some cases, not even natio probari vel alia adminicula urgentia 
semiphna prohdtio, unless corroborated : adhiberi." Mascard. De Prob. vol. i. 
" nisi aliis adminiculis adjuvetur." Mas- Concl. 411, n. 1. 2, 0, 7. 

cardus, De Prob. vol. i. Concl. 171, n. 1 ; » Weeks v. Sparke, 1 M. & S. 679, C88, 

Coucl. 183, n. 2 ; Concl. 547, n. 149. It per Le Blanc, J. [Ld. Dunraven v. 



CHAP. VT.] MATTERS OF GENERAL ESTTEREST. 161 

But where tlie question was, whether the city of Chester anciently 
formed part of the county Palatine,' an ancient document, pur- 
porting to be a decree of certain law officers and dignitaries of 
the crown, not having authority as a court, was held inadmissihle 
evidence on the ground of reputation, they having, from their 
situations, no peculiar knowledge of the fact.^ And, on the other 
hand, where the question was, whether Nottingham Castle was 
witliin the hundred of Broxtowe, certain ancient orders, made by 
the justices at the quarter-sessions for the county, in which the 
castle was described as being Avithin that hundred, were held ad- 
missible evidence of reputation ; the justices, though not proved 
to be residents within the county or hundred, being presumed, 
from the nature and character of their offices alone, to have suffi- 
cient acquaintance with the subject to which their declarations 
related.2 Thus it appears that competent knowledge in the dec- 
larant is, in all cases, an essential prerequisite to the admission of 
his testimony ; and that though all the citizens are presumed to 
have that knowledge, in some degree, where the matter is of 
public concernment, yet, in other matters, of interest to many 
persons, some particular evidence of such knowledge is required. 
§ 180. Rights must be ancient and declarants dead. It is to be 
observed, that the exception we are now considering is admitted 
only in the case of aficient riglits, and in respect to the declara- 
tions of persons supposed to he dead.^ It is required by the nature 
of the rights in question ; their origin being generally antecedent 
to the time of legal memory, and incapable of direct proof by 
living witnesses, both from this fact, and also from the undefined 
generality of their nature. It has been held, that, where the 
nature of the case admits it, a foundation for the reception of 
hearsay evidence, in matters of public and general interest, should 
first be laid by proving acts of enjoyment within the period of 

Llewellyn, 15 Q. B. 809; Warrick v. quality of the hearsay evidence raises a 

Queen's College, 40 L. J. C. 785]. The natural inference that it was derived from 

actual disscussion of the subject in the persons acquainted with the subject, tlie 

neighborhood was a fact also relied on courts will not require independent proof 

in the Roman law, in cases of proof by of that fact. Freeman v. Phillipps, 4 M. 

common fame. " Quando testis vult & S. 486.] 

probare aliqucm scivisse, non vidctur i Rogers v. Wood, 2 Barn. & Ad. 24.j. 

sufficere, quod dicat ille scivit quia erat 2 Duke of Newcastle v. Broxtowe, 4 

vicinus; sed debet addere, in vicinia hoc Barn. & Ad. "iTo. _ • . -o 

erat cognitum per famam, vel alio modo ; •* Moseley v. Uavies, 11 Price, 162 ; Re- 

et ideo iste, qui erat vicinus, potuit id gina v. Milton, 1 Car. & Kir. 58; Davis r. 

scire*." J. Menochius, De Prresump. torn. Fuller, 12 Vt. 178. 
ii. lib. 6, Prses. 24, n. 17, p. 772. [If the 

VOL. I. 11 



162 LAW OF EVTDEN-CE. [PAET H. 

living memory.* But this doctrine lias since been overruled; 
and it is now held, that such proof is not an essential condition 
of the reception of evidence of reputation, but is only material 
as it affects its value when received.^ Where the nature of the 
subject does not admit of proof of acts of enjoyment, it is obvious 
that proof of reputation alone is sufficient. So, where a right or 
custom is established by documentary evidence, no proof is neces- 
sary of any particular instance of its exercise ; for, if it were 
otherwise, and no instance were to happen within the memory of 
man, the right or custom would be totally destroyed.^ In the 
case of a private right, however, where proof of particular in- 
stances of its exercise has first been given, evidence of reputation 
has sometimes been admitted in confirmation of the actual enjoy- 
ment ; but it is never allowed against it.^ 

§ 131. Declarations must be ante litem motam. Another impor- 
tant qualification of the exception we have been considering, by 
which evidence of reputation or common fame is admitted, is, 
that the declaration so received must have been onade hefore 
any controversy arose touching the matter to which it relates ; 
or, as it is usually expressed, ante liteyn motam. The ground on 
which such evidence is admitted at all is, that the declarations 
" are the natural effusions of a party who must know the truth, 
and who speaks upon an occasion when his mind stands in an 
even position, without any temptation to exceed or fall short of 
the truth." ^ But no man is presumed to be thus indifferent in 

1 PerBuller,J.,inMorewoofU'. Wood, C. 662, 663, per Littledale, J. [Res. v. 
14 East, 3:W, n. ; per Le Bhinc, J., in Bedfordshire, 4 E. & B. 5:^,o ; Pritchard 
Weeks v. Sparke, 1 M. & S. G88, 689. v. Powell, 10 Q. B. 590 ; Drinkwater v. 

2 Crease r. Barrett, 1 Cromp. Mees. & Porter, 7 C. & P. 181]. A doctrine 
Pogc. U19, 930. See also ace. Curson v. nearly similar is held by the civilians, in 
Lomax, 'i Ksp. 90, per Ld. Ellenborough ; cases of ancient i)rivate rights. Thus 
Steele v. Prickett, 2 Stark. 403, 460, per Mascardus, after stating, upon the author- 
Abbott, C. J.; Katcliff v. Cliapman, 4 ity of many jurists, that " Dominium in 
Leon. 242, as explained bv Grose, J., in antiquis proljari per famam, traditnm 
Boebe y. Parker, 5 'r. II. 32. est, — veluti si fama sit, banc domum 

8 Bcebe ('. Parker, 5 T. li. 26, 32 ; Doe fuisse Dantis Poetio, vel alterius, qui 

r. Sisson, 12 East, 62 ; Steele i". Prickett, decessit, jam sunt centum anni, et nemo 

2 Stark. 4(j:;, 400. A single act, undis- vidit, qui vidcrit, quern refert," &c., sub- 

turbed, has been held sutFicient evidence sequently qualifies this general proposi- 

of a custom, the court refusing to set tion in these words: " Primo limita 

aside a verdict finding a custom upon principalem {tonclusioncni, ut non pro- 

sucli evidence alone. Koe v. .Tefferv, 2 cedat, nisi cum fama concurrant alia 

M. & S. !>2 ; Doe c Mason, o Wils. 03. adminicula, saltom prajsentis possessi- 

^ Wliite V. Lisle, 4 Mad. 214, 225. onis," &c. Mascard. De Prob. vol. ii. 

See More wood v. Wood, 14 East, 330, n., Concl. 647, n. 1, 14. 

per Buller, J. ; Weeks v. Sparke, 1 M. & '' Per Ld. Eldon, in Whitelocke v. 

S. 090, per Bavlev.J. ; Kosrers o. Allen, 1 Baker, 13 Vos. 514; Rex v. Cotton, 3 

Campb. 309 ; Richards v. Basse tt, 10 B. & Campb. 444, 446, per Dampier, J. 



CHAP. VI.] MATTERS OF GENERAL INTEREST. 163 

regard to matters in actual controversy: for, when the contest 
has begun, people generally take part on the one side or the 
other ; their minds are in a ferment ; and, if they are disposed to 
speak the truth, facts are seen by them through a false medium. 
To avoid, therefore, the mischiefs which would otherwise result, 
all ex parte declarations, even though made upon oath, referring 
to a date subsequent to the beginning of the controversy, are 
rejected.! This rule of evidence was familiar in the Roman law ; 
but the term lis mota was there applied strictly to the commence- 
ment of the action, and was not referred to an earlier period of 
the controversy .2 But in our law the term lis is taken in the 
classical and larger sense of controversy ; and by lis mota is under- 
stood the commencement of the controversy, and not the com- 
mencement of the suit.3 The commencement of the controversy 
has been further defined by Mr. Baron Alderson, in a case of pedi- 
gree, to be " the arising of that state of facts on which the claim 
is founded, without any thing more." * 

§ 132. Lis mota defined. The lis mota, in the sense of our 
law, carries with it the further idea of a controversy upon the same 
particular subject in issue. For, if the matter under discussion 
at the time of trial was not in controversy at the time to which 
the declarations offered in evidence relate, they are admissible, 
notwithstanding a controversy did then exist upon some other 
branch of the same general subject. The value of general repu- 
tation, as evidence of the true state of facts, depends upon its 
being the concurrent belief of minds unbiassed, and in a situation 
favorable to a knowledge of the truth, and referring to a period 
when this fountain of evidence was not rendered turbid by agita- 

1 TheBerkley Peerage case, 4 Campb. * Walker v. Countess of BeauchampI 
401, 409, 412. 413 ; Monkton v. The At- 6 C. & P. 552, 561. But see Reilly v. 
torney-General, 2 Russ. & My. 160, 161; Fitzgerald, 1 Drury (Ir.), 122, where this 
Richards v. Bassett, 10 B. & C. 657. is questioned. [And Shedden v. Attor- 

2 " Lis est, ut primum in jus, vel in ney-General, where it is overruled ; and 
judicium ventuni est ; antequam in judi- it is now held, that this must be not 
cium veniatur, controversia est, non lis." merely facts which may lead to dispute, 
Cujac. Opera Posth. torn. v. col. 193, B. but a lis mota or suit, or controversy pre- 
and col. 162, D. " Lis inchoata est ordi- paratory to a suit, actually commenced, 
nata per Ubellum, et satisdationem, licet And upon the subject-matter in litiga- 
non sit lis contestata." Corpus Juris, tion, Davies v. Lowndes, 7 Scott N. R. 
Glossatum, tom. i. col. 553, ad Dig. lib. iv. 214. And, in the late case of Butler y. 
tit. 6, 1. 12. " Lis mota censetur, etiamsi Mountgarret, it was held that a contro- 
solus actor egerit." Calv. Lex. verb. Lis versy in a family, though not at that 
Mota. moment the subject of a suit, constitutes 

3 Per Mansfield, C. J., in the Berkley sufficiently a lis mota, to render inadmis- 
Peerage case, 4 Campb. 417 ; Monkton v. sible a letter written on that subject by 
The Attoruey-General, 2 Russ. & My. one member of the family and addressed 
161. to another. 7 H. L. Cas. 633.1 



164 LAW OP EVIDENCE. [PAUT H. 

tion. But the discussion of other topics, however simiLar in their 
general nature, at the time referred to, does not necessarily lead 
to the inference that the particular point in issue was also con- 
troverted, and, therefore, is not deemed sufficient to exclude the 
sort of proof we are now considering. ■ Thus, where, in a suit 
between a copyholder and the lord of the manor, the point in 
controversy was, whether the customary fine, payable upon the 
renewal of a life-lease, was to be assessed by the jury of the lord's 
court, or by the reasonable discretion of the lord himself; deposi- 
tions taken for the plaintiff, in an ancient suit by a copyholder 
against a former lord of the manor, where the controversy was 
upon the copyholder's right to be admitted at all, and not upon 
the terms of admission, in which depositions the customary fine 
was mentioned as to be assessed by the lord or his steward, were 
held admissible evidence of what was then understood to be the 
undisputed custom.^ In this case, it Avas observed by one of the 
learned judges that " the distinction had been correctly taken, 
that, where the lis mota was on the very point, the declarations of 
persons would not be evidence ; because you cannot be sure, that 
in admitting the depositions of witnesses, selected and brought 
forward on a particular side of the question, Avho embark, to a 
certain degree, with the feelings and prejudices belonging to that 
particular side, you are drawing evidence from perfectly unpol 
luted sources. But where the point in controversy is foreign to 
that wliich was before controverted, there never has been a lis 
mota, and consequently the objection does not apply." 

§ 133. Declarations post litem motam. Declarations made after 
the controversy has originated are excluded, even though proof 
is offered that the existence of the controversy was not known to 
the declarant. The question of his ignorance or knowledge of 
this fact is one which the courts will not try : partly because of 
the danger of an erroneous decision of the principal fact by the 
jury, fi-om the raising of too many collateral issues, thereby intro- 
ducing great confusion into the cause ; and partly from the fruit- 
lessness of the inquiry, it being from its very nature impossible, 
in most cases, to prove that the existence of the controversy was 
not known. The declarant, in these cases, is always absent, and 
generally dead. Tlie light afforded by liis declarations is at best 
extremely feeble, and far from being certain ; and if introduced, 

1 Freeman h rhillips, 4 M. & S. 480, 497 ; Elliott v. riersol, 1 Peters, 328, 337. 



CHAP. VI.] JIATTERS OF GENERAL INTEREST. 



165 



with the proof on both sides, in regard to his knowledge of the 
controversy, it would induce darkness and confusion, perilling 
the decision without the probability of any compensating good to 
the parties. It is therefore excluded, as more likely to prove 
injurious than beneficial.^ 

§ 134. Exception of declarations as to pedigree. It has some- 
times been laid down, as an exception to the rule excluding dec- 
larations made post litem motam^ that declarations concerning 
pedigree will not be invalidated by the circumstance that they 
were made during family discussions, and for the purpose of pre- 
venting futiu-e controversy ; and the instance given, by way of 
illustration, is that of a solemn act of parents, under their hands, 
declaring the legitimacy of a child. But it is conceived that evi- 
dence of tliis sort is admissible, not by way of exception to any 
rule, but because it is, in its own nature, original evidence : con- 
stituting part of the fact of the recognition of existing relations 
of consanguinity or affinity ; and falling naturally under the head 
of the expression of existing sentiments and affections, or of dec- 
larations against the interest, and pecidiarly within the knowl- 
edge of the party making them, or of verbal acts, part of the res 
gestce? 



1 [Shedden v. Attorney-General, 2 Sw. 
& T. 170] ; The Berkley Peerage case, 4 
Campb. 417, per Mansfield, C. J. ; supra, 
§ 124. This distinction, and the reasons 
of it, were recognized in the Roman law ; 
but there the rule was to admit the dec- 
larations, though made post litem motam, 
if they were made at a place so very far 
remote from the scene of the controversy, 
as to remove all suspicion that the decla- 
rant had heard of its existence. Thus it 
is stated by Mascardus : " Istud auteni 
quod diximus, debere testes deponere 
ante litem motam, sic est .accipiendum, 
ut verum sit, si ibidem, ubi res agitur, 
audierit ; at si alibi, in loco qui longis- 
sime distaret, sic intellexerit, etiam post 
litem motam testes de auditu admittun- 
tur. Longinquitas enim loci in causa est, 
ut omnis suspicio abesse videatur quae 
quidem suspicio adesse potest, quando 
testis de auditu post litem motam, ibi- 
dem, ubi res agitur, deponit." Mascard. 
De Probat. vol. 1, p. 401 [429], Concl. 
410, n. 5, 6. [But a declaration made 
expressly with a view to a probable fu- 
ture contest is admissible, ^i/aHifun valeat; 
but not if made in a prior cause on the 
Bame subject-matter, but to this effect 
the same precise point now in contro- 



versy must have been there involved. 
Jenkins v. Davies, 10 Q. B. n. s. 314.] 

2 Supra, §§ 102-108, 131 ; Goodright 
V. Moss, Cowp. 591 ; Monkton v. The 
Attorney-General, 2 Russ & My. 147, 
IGO, 161, 164 ; Slaney v. Wade, 1 My. & 
Cr. 338 ; The Berkley Peerage case, 4 
Campb. 418, per Mansfield, C. J. [It 
follows from the above explanation of 
lis mota, first, that declarations will not 
be rejected, in consequence of their hav- 
ing been made with the express view rif pre- 
venting disputes; secondly, that they are 
admissible, if no dispute has arisen, 
though made in direct support of the title 
of tlie declarant; and, thirdly, that the 
mere fact of the declarant having stood, 
or having believed tliat he stood, in pari 
jure with the party relying on the decla- 
ration, will not render his statement 
inadmissible. In support of the first 
proposition, the Berkley Peei-age case 
may be referred to, wliere the judges 
unanimously held, in conformity with an 
earlier opinion expressed by Lord Mans- 
field (Goodright v. Moss, 2 Cowp. 591), 
that an entry made by a father in any 
book, for the express purpose of estab- 
lishing the legitimacy of his son at the 
time of his birth, in case the same shoiild 



166 



LAW OF EVIDENCE. 



[part n. 



§ 135. "Witness need not specify from whom he heard. Where 
evidence of reputation is admitted, in cases of public or general 
interest, it is not necessary that the witness should be able to 
specify from whom he heard the declarations. For that, in much 
the greater number of cases, would be impossible ; as the names 
of persons long since dead, by whom declarations upon topics of 
common repute have at some time or other been made, are mostly 
foro'otten.i And, if the declarant is known, and appears to i.ave 
stood in pari casu with the party offering his declarations ii. evi- 
dence, so that he could not, if living, have been personally exam- 
ined as a witness to the fact of which he speaks, this is no vahd 
objection to the admissibility of his declarations. The reason is, 
the absence of opportunity and motive to consult his mterest, at 
the time of speaking. Whatever secret wish or bias he may have 
had in the matter, there was, at that time, no excited interest 
called forth in his breast, or, at least, no means were afforded of 
promoting, nor danger incurred of injuring, any interest of his 



be called in question, will be receivable 
in evidence, notwithstanding the pro- 
fessed view with which it was made. 
4 Camp. 4J8. Tliis doctrine has since 
been sanctioned by Lords Brougham 
(Monkton v. Attorney -General, 2 Russ. & 
Myl. 147, 100, 161, 104) and Cottenliam 
in England (Slaney v. Wade, 1 Myl. & Cr. 
838), and by Lord St. Leonards in Ireland 
(Reilly v. Fitzgerald, 6 Ir. Eq. 335, 344- 
349), and may now be considered as es- 
tablished law" in both countries. One of 
the latest decisions in support of the sec- 
ond proposition is Doe v. Davies, 10 Q. B. 
314, 325, where the court observed, that, 
although a feeling of interest will often 
cast suspicion on declarations, it has 
never been held to render them inadmis- 
sible. The third proposition is equally 
clear law ; for, although one peerage case 
appears at first sight to throw some doubt 
upon tiic subject (Zouch Peer., Fr. Min. 
207), yet it is highly probable tiiat the 
pedigree was there rejected, not as hav- 
ing been made by a party wiiile standing 
inutile same situation as the claimant, 
but as luiving been concocted by such 
person in direct contemplation of himself 
laying claim to the dignity. 

But even if the case be not susceptible 
of this explanation, a single isolated deci- 
sion can scarcely controvert a rule of 
law which lias been sanctioned and acted 
upon by numerous judges, Moseley v. 
Davies, 11 Price, 1(52, 179, per Graham, 
B.; Harwood v. Sims, Wightw. 112; 
Deacle v. Hancock, 13 Price, 23(3, 237; 



Monkton v. Attorney-General, 2 Russ. & 
Myl. 159, 160, per Ld. Brougham ; Free- 
man V. Phillipps, 4 M. & Sel. 486, 491, 
per Ld. Ellenborough, cited with appro- 
bation by Ld. Lyndhurst, C. B., in 
Davies v. Morgan, 1 C. & J. 593, 594; 
NichoUs V. Parker, 14 East, 331, n. ; Doe 
V. Tarver, Ry. & M. 141, 142, per Abbott, 
C. J., and which is so founded on reason, 
that a contrary doctrine would go far 
towards excluding all evidence of repu- 
tation. For instance, in cases of public 
and general interest, the rejection of such 
evidence would be wholly inconsistent 
with the rule which requires the state- 
ment to have been made by some person 
having competent knowledge of the sub- 
ject, post, § 136 ; and in cases of pedi- 
gree, though the result of excluding 
declarations of persons in pari jure would 
not be equally mischievous, it would 
frequently have the effect of drying up 
sources of information which would be 
liiglily valuable in the investigation of 
truth. In any one of the three classes 
of declarations just mentioned, it is very 
possible that the declarant may have had 
some secret wish or bias which may 
have induced him to make a statement 
either partially or totally false ; but the 
same observation might apply to all evi- 
dence of this nature, and its weight in 
cacli particular case must be determined 
by the jury. Tay. Ev. §§ 565, 560.] 

1 Moseley i'. Davies, 11 Price, 162, 
174, per Richards, 0. B. ; Harwood v. 
Sims, Wightw. 112. 



CHAP. VI.] IklATTEES OF GEN*EKAL rNTEKEST. 167 

own ; nor could any sucli be the necessary result of Lis declara- 
tions. Whereas, on a trial, in itself and of necessity directly 
affecting his interest, there is a double objection to admitting his 
evidence, in the concurrence both of the temptation of interest 
and the excitement of the lis mota} 

§ 136. Must have knowledge. Indeed the rejection of the evi- 
dence of reputation, in cases of public or general interest, because 
it may have come from persons in pari casu with the party offer- 
ing it, would be inconsistent with the qualification of the rule 
which has already been mentioned ; namely, that the statement 
thus admitted must appear to have 'been made by persons having 
competent knowledge of the subject.^ Without such knowledge, 
the testimony is wortliless. In matters of public right, all per- 
sons are presumed to possess that degree of knowledge which 
serves to give some weight to their declarations respecting them, 
because all have a common interest. But in subjects interesting 
to a comparatively small portion of the community, as a city or 
parish, a foundation for admitting evidence of reputation, or the 
declarations of ancient and deceased persons, must first be laid, 
by showing that, fi-om their situation, they probably were con- 
versant with the matter of which they were speaking.^ 

§ 137. Matters of private interest. The probable want of com- 
jutent knoivledge in the declarant is the reason generally assigned 
for rejecting evidence of reputation or common fame, in matters 
of mere private right. " Evidence of reputation, upon general 
points, is receivable," said Lord Kenyon, " because, all manldnd 
laeing interested therein, it is natural to suppose that they may 
be conversant with the subjects, and that they should discourse 
together about them, having all the same means of information. 

1 Moseley v. Davies, 11 Price, 179, Broxtowe, 4 B. & Ad. 273; Rogers i;. 
per Graham, B. ; Deacle v. Hancock, 13 Wood, 2 B. & Ad. 245. The Roman law, 
Price, 236, 237 ; Nichols v. Parker, \i as stated by Mascardus, agrees with the 
East.ool, n. ; Harwood v. Sims, Wightw. doctrine in tlie text. " Confines proban- 
112;' Freeman v. Phillipps, 4 M. & S. tur, per testes. Verum scias velim, 
486, 491, cited and approved by Lynd- testes in hac materia, qui vicini, et cir- 
hurst, C B., in Davies v. Morgan, 1 C. & cum ibi habitant, esse magis idoneos 
J. 593, 594 ; Monkton v. Attorney-Gen- quam alios. Si testes non sentiant com- 
eral, 2 Russ. & ily. 159, 160, per Ld. Cii. modum vel incommodum immediatum, 
Bro'ugliam; Reedv. Jackson, 1 East, 355, possint pro sua coinmuuitate deponere. 
357 ; Chapman v. Cowlan, 13 East, 10. Licet hujusmodi testes sint de universi- 

2 Snpra, §§ 128, 129. tate, et deponant super confinibus suae 

3 Weeks v. Sparke, 1 M. & S. 679, 686, universitatis, probant, dummodum pr»- 
690; Doe d. Molesworth v. Sleeman, 1 cipuura ipsi commodum non sentiant. 
New Pr. Cas. 170; Morewood y. Wood, licent inferant commodum in univer- 
14 East, 327. n. ; Crease v. Barrett, 1 Cr. sum." Mascard. De Probat. vol. iv. pp 
M. & Ros. 929; Duke of Newcastle v. 389, 390, Concl. 395, n. 1, 2, 9, 19. 



168 



LAW OF EVIDENCE. 



[part n. 



But how can this apply to private titles, either with regard to 
partievilar customs, or private prescriptions ? How is it possible 
for strangers to know any thing of what concerns only private 
titles ? " ^ The case of prescriptive rights has sometimes been 
mentioned as an exception ; but it is believed, that, where evi- 
dence of reputation has been admitted in such cases, it will be 
found that the right was one in which many persons were equally 
interested. The weight of authority, as well as the reason of the 
rule, seems alike to forbid the admission of this kind of evidence, 
except in cases of a public or quciHi public nature.^ 

§ 138, Particular facts. This principle may serve to explain 
and reconcile what is said in the books respecting the admissibility 
of reputation^ in regard to particular facts. Upon general points, 
as we have seen, such evidence is receivable, because of the gen- 
eral interest which the community have in them ; but particular 
facts of a private nature, not being notorious, may be misrepre- 
sented or misunderstood, and may have been connected with 
other facts, by which, if known, their effect might be limited or 
explained. Reputation as to the existence of such particular facts 
is, therefore, rejected.^ But, if the particular fact is proved ali- 
unde, evidence of general reputation maybe received to qualify and 
explain it. Thus, in a suit for tithes, where a parochial modus 
of sixpence per acre was set up, it was conceded that evidence of 



• Morewood v. Wood, 14 East, 329, n. 
per Ld. Ken yon ; 1 Stark. Evid. 30, 31 ; 
Clothier v. Cliapman, 14 East, 331, n.; 
Reed v. Jackson, 1 ICast, 357 ; Outram v. 
Morewood, 5 'P. R. 121, 123; Weeks v. 
Sparke, 1 M. & S. 679. 

■^ Ellicott V. Pearl, 10 Peters, 412; 
Richards v. Rassctt, 10 B. & C. (557, 602, 
663, per Littlcdale, J. ; anpra, § 130. The 
following are cases of a quasi public 
nature ; though they are usually, but, 
on the foregoing i)rinciples, erroneously, 
citetl in favor of the admissibility of evi- 
dence of reputation in cases of mere pri- 
vate right. Bishop of Meath v. Lord 
P.eltielil, Bull. N. P. 2'.»5, wlierc the ques- 
tion was, wlio ])rescnted the former in- 
cumbent of a parish, — a fact interesting 
to all the parisliioners ; Price v. Little- 
■wr)od, 3 Campb. 2H8, where an old entry 
ill the vestry-book, by the church-war- 
dens, showing by what persons certain 
parts of the church were repaired, in 
consideration of their occupancy of pews, 
was admitted, to show title to a pew in 
one under whom the plaintiff chwmed; 
Barnes v. Mawson, 1 M. & S. 77, which 



was a question of boundary between two 
large districts of a manor called the Old 
and New Lands ; Anscomb v. Shore, 1 
Taunt. 261, where the right of common 
prescribed for was claimed by all the 
inhabitants of Hamj)ton ; Blackett r. 
Lowes, 2 M. & S. 494, 500, where tlie 
question was as to the general usage of 
all the tenants of a manor, the defendant 
being one, to cut certain woods; Brett 
V. Beales, 1 Mood. & Malk. 410, which 
was a claim of ancient tolls belonging to 
tiie corporation of Cambridge ; White 
V. Lisle, 5 Madd. Ch. 214, 224, 22-'), where 
evidence of reputation, in regard to a 
parochial modus, was held admissible, be- 
cause "a class or district of persons was 
concerned ; " but denied in regard to a 
/arm modus, because none but tlie occu- 
'])ant of the farm was concerned. In 
Davies r. Lewis, 2 Chitty, 535, the dec- 
larations offered in evidence were clearly 
admissible, as being those of tenants in 
possession, stating under whom they held. 
See .s'"/)ra, § 108. 

« [Rex V. Bliss, 7 A. & E. 550.1 



CHAP. VI.] MATTERS OF GENERAL INTEREST. 169 

reputation of the payment of that sum for one piece of land would 
not be admissible ; but it was held, that such evidence would be 
admissible to the fact that it had always been customary to pay 
that sum for all the lands in the parish.^ And where the ques- 
tion on the record was whether a turnpike was withm the limits 
of a certain town, evidence of general reputation was admitted 
to show that the bounds of the town extended as far as a certain 
close, but not that formerly there were houses, where none then 
stood ; the latter being a particular fact, in which the public had 
no interest.^ So, where, upon an information against the sheriff 
of the county of Chester, for not executing a death-warrant, the 
question was whether the sheriff of the county or the sheriffs of 
the city were to execute sentence of death, traditionary evidence 
that the sheriffs of the county had always been exempted from 
the performance of that duty was rejected, it being a private 
question between two individuals ; the public having an interest 
only that execution be done, and not in the person by whom it 
was performed.^ The question of the admissibility of this sort of 
evidence seems, therefore, to turn upon the nature of the reputed 
fact, whether it was interesting to one party only or to many. If 
it were of a public or general nature, it falls within the exception 
we are now considering, by wMch hearsay evidence, under the 
restrictions already mentioned, is admitted. But if it had no con- 
nection with the exercise of any public right, nor the discharge 
of any public duty, nor with any other matter of general interest, 
it falls within the general rule by which hearsay evidence is ex- 
cluded.* 

1 Harwood v. Sims, Wightw. 112, more "Weeks v. Sparke, 1 M. & S. 679 ; With- 
f ully reported and explained in Moseley nell v. Gartham, 1 Esp. 322 ; Doe v. 
r. Davies, 11 Price, 162, 169-172; Chat- Tliomas, 14 East, 323; Pliil. & Am. on 
field V. Fryer, 1 Price. 253; Wells v. Evid. 258; 1 Stark. Evid. 34, 35; Out- 
Jesus College, 7 C. & P. 284; Leathes v. ram v. Morewood, 5 T. R. 121, 123; Rex 
Newith, 4 Price, 355. v. Eriswell, 3 T. R. 709, per Grose, J. 

2 Ireland v. Powell, Salop. Spr. Ass. "Where particular knowledge of a fact is 
1802, per Chambre, J. ; Peake's Evid. 13, sought to be brought home to a party, 
14 (Norris's edit. p. 27). [It is no ground evidence of the general reputation and 
of objection to the admissibility of such belief of the existence of that fact, 
evidence, that matters of private interest among his neighbors, is admissible to the 
are also involved in the public contro- jury, as tending to show that he also had 
versy. Reg. v. Bedford, 4 El. & Bl. 535 ; knowledge of it, as well as they. Bran- 
8. c. 29 Eng. Law & Eq. 89.] der v. Ferridy, 16 La. 296. [Not, how- 

3 Rex V. Antrobus, 2 Ad. & El. 788, ever, unless it is a matter of public 
794. interest. Notoriety, for instance, will 

* "White V. Lisle, 4 Madd. Ch. 214, not prove a dissolution of partnership. 
224, 225; Bishop of Meath v. Lord Bel- Pitcher v. Barrows, 17 Pick. (Mass.) 361; 
field. 1 Wils. 215; Bull. N. P. 295; anie; § 137 ; />os^, vol. ii. § 483.] 



170 



LAW OF EVIDENCE. 



[PAET n. 



§ 189. Documents, maps, verdicts. Hitherto we have mentioned 
oral declarations, as the medium of proving traditionary reputa- 
tion in matters of public and general interest. The princijAe, 
however, upon which these are admitted, apjyiies to documentary 
and all other kinds of jproof denominated hearsay. If the matter 
in controversy is ancient, and not susceptible of better evidence, 
any proof in the nature of traditionary declarations is receivable, 
whether it be oral or written ; subject to the qualifications we 
have stated. Thus, deeds, leases, and other private documents, 
have been admitted as declaratory of the public matters recited 
in them.i Maps, also, showing the boundaries of towns and 
parishes, are admissible, if it appear that they have been made by 
persons having adequate knowledge.^ Verdicts, also, are receiv- 
able evidence of reputation, in questions of public or general 
interest.^ Thus, for example, where a public right of way was in 
question, the plaintiff was allowed to show a verdict rendered in 
his own favor, against a defendant in another suit, in which the 
same right of way was in issue ; but Lord Kenyon observed, that 
such evidence was, perhaps, not entitled to much weight, and 
certainly was not conclusive. The circumstance, that the ver- 
dict was^osi litem motam^ does not affect its admissibility.^ 

§ 140. Against a public right. It is further to be observed, that 
reputation is evidence as well against a public right as in its favor. 
Accordingly, where the question was, whether a landing-place 
was public or private property, reputation, from the declaration 



1 Curzon v. Lomax, 5 Esp. 60 ; Brett 
V. Beales, 1 M. & M. 410; Claxton v. 
Dare, 10 B. & C. 17 ; Clarkson v. Wood- 
liouse, 5 T. li. 412, n. ; s. c. 3 Doug. 189; 
Barnes v. Mawson, 1 M. & S. 77, 78; 
Coombs V. Coetlier, 1 M. & M. 398 ; Beebe 
V. I'arker, 5 T. K. 26 ; Freeman v. Pliil- 
lips, 4 M. & S. 48(5 ; Crease v. Barrett, 1 
Cr. Mees. & llos. 'J2-> ; Denn v. Spray, 1 
T. R. 466; Bullen v. Michel, 4 Dow, 298; 
Taylor r. Cook, H Price, 650. 

•-2 1 Phil. Eviil. 250, 251 ; Alcock v. 
Cooke, 2 Moore & Payne, 625; s. c. 5 
Bing. 340; Noyes (■. White, 19 Conn. 250. 
Upon a question of boundary between 
two farms, it being proved that tlie boun- 
dary of one of them was identical with 
that of a hamlet, evidence of reputation, 
as to the bounds of the hamlet, was held 
admissible. Thomas v. Jenkins, 1 N. & 
P. 688. But an old map of a parish, pro- 
duced from the j)arisli chest, and which 
was made under a private enclosure act, 



was held inadmissible evidence of boun- 
dary, without proof of the inclosure act. 
Keg. V. Milton, 1 C. & K. 58. 

^ But an interlocutory decree for pre- 
serving the status ipio, until a final deci- 
sion upon the right should be had, no 
final decree ever having been made, is 
inadmissible as evidence of reputation. 
Pirn V. Currell, 6 M. & W. 234. 

* Reed v. Jackson, 1 East, 355, 857; 
Bull. N. P. 233; City of London v. 
Clarke, Carth. 181 ; Rhodes v. Ains- 
worth, 1 B. & Aid. 87, 89, per Holroyd, 
J.; Lancum v. Lovell, 9 Bing. 405,409; 
Cort V. Birkbeck, 1 Doug. 218, 222, i)er 
Lord Mansfield ; Case of tlie Manchester 
Mills, 1 Doug. 221, n. ; Berry v. ]?anner, 
IVake's Cas. 150; Biddulph v. Atlier, 2 
Wils. 23; Brisco v. Lomax, 3 N. & P. 
388; Evans v. Rees, 2 P. & D. G27 ; s. c. 
10 Ad. & El. 151 [Carnarvon r. Villebois, 
13 M. & W. 313; Reg. v. Brightside, 13 
Q. B. 933]. 



CHAP. VI.] IIATTEES OF GENERAL INTEREST. ITl 

of ancient deceased persons, that it was the private landing- 
place of the party and liis ancestors, was held admissible ; the 
learned judge remarking, that there was no distinction between 
the evidence of reputation to establish and to disparage a public 
right. ^ 

1 Drinkwater v. Porter, 7 C. & P. 181; Hatherton, 10 M. & W. 218; Portland v. 
R. i;. Sutton, 3 N. & P. 569 [Anglesea v. Hill, 4 L. R. Eq. 765]. 



172 LAW OF EVIDENCE. [PABT U. 



CHAPTER VII. 

OF ANCIENT POSSESSIONS. 

§ 141. Ancient possessions and documents. A second exception to 
the rule, rejecting hearsay evidence^ is allowed in cases of ancient 
possession^ and in favor of the admission of ancient documents in 
support of it. In matters of private right, not affecting any public 
or general interest, hearsay is generally inadmissible. But the 
admission of ancient documents, purporting to constitute part of 
the transactions themselves^) to which, as acts of ownership, or of 
the exercise of right, the party against whom they are produced 
is not privy, stands on a different principle. It is true, on the 
one hand, that the documents in question consist of evidence 
which is not proved to be part of any res gestce^ because the only 
proof of the transaction consists in the documents themselves ; 
and these may have been fabricated, or, if genuine, may never 
have been acted upon. And their effect, if admitted in evidence, 
is to benefit persons connected in interest with the original par- 
ties to the documents, and from whose custody they have been 
produced. But, on the other hand, such documents always 
accompany and form a part of every legal transfer of title and 
possession by act of the parties ; and there is, also, some presump- 
tion against their fabrication, where they refer to coexisting sub- 
jects by wliich their truth might be examined.^ On this ground, 
therefore, as well as because such is generally the only attainable 
evidence of ancient possession, this proof is admitted, under the 
qualifications which will be stated. 

§ 142. Documents must come from proper custody. As the value 
of these documents depends mainly on their having been contem- 
poraneous, at least, with the act of transfer, if not part of it, care 
is first taken to ascertain their genuineness ; and this may be 
shown prima facie^ by proof that the document comes from the 

1 1 Pliil. Evid. 273; 1 Stark. EviJ. GO, docuraonts are those more than thirty 
67 ; Clarkson v. Wocxlhouse, 6 T. R. years old. Ante, § 21.] 
413, n., per Lord Mansfield. [Ancient 



CHAP, vn.] 



OP ANCIENT POSSESSIONS. 



173 



proper custody^ or by otherwise accounting for it. Documents 
found in a place in wliicli, and under the care of persons with 
whom, such papers might naturally and reasonably be expected 
to be found, or in the possession of persons having an interest in 
them, are in precisely the custody wliich gives authenticity to 
documents found within it.^ " For it is not necessary," observed 
Tindal, C. J., " that they should be found in the best and mo^c 
l^roper 23lace of deposit. If documents continue in such custody, 
there never would be any question as to their authenticity : but 
it is Avhen documents are found in other than their proper place 
of deposit, that the investigation commences, whether it is rea- 
sonable and natural, under the circumstances in the particular 
case, to expect that they should have been in the place where 
they are actually found ; for it is obvious, that, while there can 
be only one place of deposit strictly and absolutely proper, there 
may be many and various that are reasonable and probable, 
though differing in degree ; some being more so, some less ; and, 
in those cases, the propositian to be determined is, whether the 



1 Per Tindal, C. J., in Bishop of Meath 
V. Marquis of Winchester, 2 Bing. N. C. 
183, 200, 201, expounded and confirmed 
by Parke, B., in Croughton v. Blake, 12 
M. & W. 205, 208; and in Doe d. Jacobs 
V. Phillips, 10 Jur. 34 ; 8 Ad. & El. n. s. 
158. See also Lygon v. Strutt, 2 Anstr. 
601 ; Swinnerton v. Marquis of Stafford, 
3 Taunt. 91; BuUen v. Michel, 4 Dow, 
297 ; Earl v. Lewis, 4 Esp. 1 ; Randolph 
V. Gordon, 5 Price, 312; Manby v. Curtis, 
1 Price, 225, 282, per Wood, B. ; Bertie 
V. Beaumont, 2 Price, 303, 307 ; Barr v. 
Gratz, 4 Wheat. 213, 221; Winne v. Pat- 
terson, 9 Peters, 663-675; Clarke v. 
Courtney, 5 Peters, 319, 344; Jackson v. 
Laroway, 8 Johns. Cas. 383, approved in 
Jackson v, Luquere, 5 Cowen, 221, 225; 
Hewlett V. Cock, 7 Wend. 371, 374; Dun- 
can V. Beard, 2 Nott & McC. 400; Mid- 
dleton V. Mass, 2 Nott & McC. 55; Doe 
V. Beynon, 4 P. & D. 193; infra, § 570; 
Doe V. Pearce, 2 M. & Rob. 240; Tolman 
V. Emerson, 4 Pick. 160 [United States 
V. Castro, 2 How. 346]. An ancient ex- 
tent of crown lands, found in the office 
of the land revenue records, it being the 
proper repository, and purporting to have 
been made by the proper officer, has been 
held good evidence of the title of the 
crown to lands therein stated to have 
been purchased b)' the crown from a 
subject. Doe d. Wm. IV. v. Roberts, 13 
M. & W. 520. [An ancient private sur- 



vey is not evidence. Daniel v. Wilkin, 7 
Exch. 429.] Courts will be liberal in 
admitting deeds, where no suspicion 
arises as to their authenticity. Doe v. 
Keeling, 36 Leg. Obs. 312; 12 Jur. 433; 
11 Ad. & El. N. s. 884. The proper cus- 
tody of an expired lease is that of the 
lessor. Ibid., per Wightman, J. Whether 
a document comes from the proper cus- 
tody is a question for the judge and not 
for the jury to determine. Ibid. ; Rees v. 
Walters, 3 M. & W. 527, 531. Tlie rule 
stated in the text is one of the grounds 
on which we insist on the genuineness of 
the books of the Holy Scriptures. They 
are found in the proper custody, or place, 
where alone they ought to be looked tor; 
namely, the church, where they have 
been kept from time immemorial. They 
have been constantly referred to, as the 
foundation of faith, by all the opposing 
sects, whose existence God, in his wis- 
dom, has seen fit to permit ; whose jeal- 
ous vigilance would readily detect any 
attempt to falsify the text, and whose 
diversity of creeds would render any 
mutual combination morally impossible. 
The burden of proof is, therefore, on the 
objector, to impeach the genuineness of 
these books ; not on the Christian, to 
establish it. See Greenleaf on the Tes- 
timony of the Evangelists, Prelim. Obs. 
§9- 



174 LAW OF EVIDENCE. [PAET U. 

actual custody is so reasonably and probably accounted for, that 
it impresses the mind with the conviction that the instrument 
found in such custody must be genuine. That such is the charac- 
ter and description of the custody wliion is held sufficiently 
f^enuine to render a document admissible appears from all the 
cases." 

§ 143, MvLBt be shown to have been acted on. It is further 
requisite, where the nature of the case will admit it, that proof 
be given of some act done in reference to the documents offered 
in evidence, as a further assurance of their genuineness, and of 
the claiming of title under them. If the document bears date 
post litem motam, however ancient, some evidence of corre- 
spondent acting is always scrupulously required, even in cases 
where traditionary evidence is receivable.^ But in other cases, 
where the transaction is very ancient, so that proof of contempo- 
raneous acting, such as possession, or the like, is not probably to 
be obtained, its production is not required.^ But where unex- 
ceptionable evidence of enjoyment, referable to the document, 
may reasonably be expected to be found, it must be produced.^ 
If such evidence, referable to the document, is not to be expected, 
still it is requisite to prove some acts of modern enjoyment, with 
reference to similar documents, or that modern possession or user 
should be shown, corroborative of the ancient documents.* 

§ 144. Must be part of the transaction. Under these qualifica- 
tions, ancient documents, purporting to be a part of the transao- 
tions to which they relate, and not a mere narrative of them, are 
receivable as evidence that those transactions actually occurred. 
And though they are spoken of as hearsay evidence of ancient 
possession, and as such are said to be admitted in exception to 
the general rule ; yet they seem rather to be parts of the res 
gestce, and therefore admissible as original evidence, on the prin- 
ciple already discussed. An ancient deed, by which is meant 
one more than thirty years old, having notliing suspicious about 

1 1 Pliil. Evid. 277 ; Brett v. Beales, 1 413, n., per Lcl. Mansfield; supra, § 130, 

^liod. & j\I. 410 [United States v. Cas- and cases tliere cited. 
tTO, 24 H()w.:3Kj. Absence Dftlie support » 1 riiil. Evid. 277; Plaxton r. Dare, 

derived from proof of some act done 10 B. & C. 17. 

goes ratiier to tiie weight than to tiie * Kogers ;». Allen, 1 Campb. 309, 311 ; 

admissibility of tlie document as evi- Clarkson v. Wooilhouse, 5 T. R. 412, n. 

dence. Malcomson v. O'Dca. 10 H. of L. See the cases collected in note to § 144, 

014; Doe v. I'utman, 3 Q. B. 622]. infra. 

'^ Claritson v. Woodhouse, 6 T. R. 412; 



CHAP. YU.} 



OF ANCIENT POSSESSIONS. 



175 



it, is presumed to be efeniiine without express proof, tlie witnesses 
being- presumed dead ; and, if it is found in the proper custody, 
and is corroborated by evidence of ancient or modern corre- 
sponding enjoyment,^ or by other equivalent or expLanatory proof, 
it is to be presumed that the deed constituted part of the actual 
transfer of property therein mentioned ; because this is the usual 
and ordinary course of such transactions among men. The 
residue of tlie transaction may be as unerringly inferred from 
the existence of genuine ancient documents, as the remainder of 
a statue may be made out from an existing torso, or a perfect 
skeleton from the fossil remains of a part. 

§ 145. Ancient boundaries. Under this head may be mentioned 
the case of ancient boundaries; in proof of which, it has sometimes 
been said that traditionary evidence is admissible from the natiu-e 
and necessity of the case. But, if the principles already dis- 
cussed in regard to the admission of hearsay are sound, it will be 
difficidt to sustain an exception in favor of such evidence merely 
as applying to boundary, where the fact is particular, and not of 
public or general, interest. Accordingly, though evidence of 



1 It has been made a question, wlietlier 
the document may be read in evidence, 
before the proof of possession or other 
equivalent corroborative proof is offered ; 
but it is now stated that the document, if 
otherwise apparent!}' genuine,may be first 
read; for the question, wliether there 
has been a corresponding possession, can 
hardly be raised till the court is made 
acquainted with the tenor of the instru- 
ment. Doe V. Passingham, 2 C. & P. 440. 
If tlie deed appears, on its face, to have 
been executed under an autliority wjiicli 
is matter of record, it is not admissible, 
however ancient it may be, as evidence of 
title to land, without proof of the author- 
ity under which it was executed. Tol- 
man v. Emerson, 4 Pick. KiO. A graver 
question has been, whether the proof of 
possession is indispensable ; or whether 
its absence may be supplied by other 
satisfactory corroborative evidence. In 
Jackson d. Lewis v. Laroway, 3 Johns. 
Gas. 283, it was lield by Kent, J., against 
the opinion of the other judges, that it 
was indispensable, on the authority of 
Fleta, lib. 6, c. 34 ; Co. Lit. 6 b : Isack 
V. Clarke, 1 Roll. 132; James v. Trollop, 
Skin. 239 ; 2 Mod. 323 ; Forbes v. Wale, 
1 W. Bl. 532 ; and the same doctrine 
was again asserted by him, in delivering 
the judgment of the court, in Jackson d. 



Burhans v. Blanshan, 3 Johns. 292, 298. 
See also Thompson v. Bullock, 1 Bay, 
364 ; Middleton v. Mass, 2 Nott & McC. 
55 ; Carroll v. Norwood, 1 Har. & J. 
174, 175 ; Shaller i-. Brand, 6 Binn. 439 ; 
Doe V. Phelps, 9 Johns. 169, 171. But 
the weight of authority at present seems 
clearly the other way ; and it is now 
agreed, that, where proof of possession 
cannot be had, the deed may be read, if its 
genuineness is satisfactorily established 
by other circumstances. ISee Ld. Ean- 
cliffe V. Parkins, 6 Dow, 202, per Ld. 
Eldon ; McKenire v. Frazer, 9 Yes. 5 ; 
Doe V. Passingham, 2 C. & P. 440 ; Barr 
V. Gratz, 4 Wheat. 213, 221 ; Jackson d. 
Lewis V. Laroway, 3 Johns. Cas. 283, 287 ; 
Jackson d. Hunt v. Luquere, 5 Cowen, 
221, 225; Jackson d. Wilkins i'. Lamb, 7 
Cowen, 431; Hewlett v. Cock, 7 Wend. 
371, 373, 374; Willson v. Belts, 4 Denio, 
201. Where an ancient document, pur- 
porting to be an exemplification, is i)ro- 
duced from the proper place of deposit, 
having the usual slip of parchment to 
which the great seal is appended, but no 
appearance that any seal was ever aflixed, 
it is still to be presumed that the seal was 
once there and has been accidentally re- 
moved, and it may be read in evidence as 
an exemplification. Mayor, &c., of Bever- 
ley V. Craven, 2 M. & Rob. 140. 



176 



LAW OF EVIDEifCE. 



[PAET n. 



reputation is received, in regard to the boundaries of parishes, 
manors, and the like, which are of public interest, and generally 
of remote antiquity, yet, by the weight of authority and upon 
better reason, such evidence is held to be inadmissible for the pur- 
pose of proving the boundary of a private estate, when such 
boundary is not identical with another of a public or quasi public 
nature.^ Where the question is of such general nature, whether 



1 Ph.& Am. on Evid. 255, 256; supra, 
§ lo9 n. (2) ; Thomas y. Jenkins, 1 N. & 
V. 588; Keed v. Jackson, 1 East, 355, 
357, per Ld. Kenyon ; Doe v. Thomas, 
14 East, 323; Morewood v. Wood, Id. 
327, n. ; Outram- v. Morewood, 6 T. R. 
121, 123, per Ld. Kenyon; Nichols v. 
Parker, and Clothier v. Chapman, in 14 
East, 331, n. ; Weeks v. Sparke, 1 M. & 
S. 088, G89 ; Dura van r. Llewellyn, 15 Q. 
B. 791, Exch. Ch. ; Clierry v. Bovd, Litt. 
Sel. Cas. 8, 9; 1 Phil. Evid. 'l82 (3d 
Lond. ed.), cited and approved by Tilgh- 
man, C. J., in Buchanan v. Moore, 10 S. 
& R. 281. In the passage thus cited, the 
learned author limits the admissibilitj' 
of this kind of evidence to questions of 
a public or general nature; including a 
right of common by custom ; which, lie 
observes, "is, strictly speaking, a private 
right; but it is a <jeneral right, and there- 
fore, so far as regards the admissibility 
of this species of evidence, has been 
considered as public, because it affects a large 
number ofoccnpiers within a district." Supra, 
§§ 128,' 138; Gresloy on Evid. 220,221. 
And more recently, in England, it has 
been decided, upon full consideration, that 
traditionary evidence, respecting rights 
not of a public nature, is inadmissible. 
Dunraven v. Llewellyn, 15 Ad. & El. n. s. 
791. The admission of traditionary evi- 
dence, in casosf of boundary, occurs more 
frequently in the United States tlian in 
England. By far the greatest portion of 
our territory was originally surveyed in 
large masses or tracts, owned either by 
the State, or by tlie United States, or 
by one, or a company, of proprietors ; 
under whose authority these tracts were 
again surveyed and divided into lots suit- 
able for single farms, by lines crossing the 
whole tract, and serving as the common 
boundary of very many farm-lots l^'ing 
on each side of it. So that it is hardly 
possible, in such cases, to jjrove the origi- 
nal boundaries of oni' farm, without affect- 
ing the common boimdary of many ; and 
thus, in trials of this sort, the queslidn is 
similar, in principle, to that of the boun- 
daries of a manor, and tlieretbre tradition- 
ary evidence is freely admitted. Such 



was the case of Boardman v. Reed, 6 
Peters, 328, where the premises in ques- 
tion, being a tract of eight tliousand acres, 
were part of a large connection of surveys, 
made together, and containing between 
fift}' and one hundred thousand acres of 
land; and it is to such tracts, interesting 
to very many persons, that the remarks 
of Mr. Justice M'Lean, in that case 
(p. 341 ), are to be applied. In Conn et al. 
V. Penn et al., 1 Pet. C. C. 490, tlie tract 
whose boundaries were in controversy 
was called the manor of Springetsbury, 
and contained seventy thousand acres, 
in whicli a great number of individuals 
had severally become interested. In 
Doe d. Taylor v. Roe et al., 4 Hawks, 
116, traditionary evidence was admitted 
in regard to Earl Granvill's line, which 
was of many miles in extent, and after- 
wards constituted tlie boundary between 
counties, as well as private estates. lu 
Ralston v. Miller, 3 Randolj)!!, 44, the 
question was upon the boundaries of a 
street in the city of Richmond ; concern- 
ing wliich kind of boundaries it was said, 
that ancient reputation and possession 
were entitled to infinitely more respect, 
in deciding upon the boundaries of the 
lots, than any experimental surveys. In 
several American cases, which have some- 
times been cited in favor of the admissi- 
bility of traditionary evidence of boun- 
dary, even thougli it consisted of particular 
facts, and in cases of merely private con- 
cern, the evidence was clearly admissible 
on other grounds, either as part of the 
original res ijestxe, or as the declaration of 
a party in possession, explanatory of the 
nature and extent of his claim. In this 
class may be ranked the (-ases of Caufman 
V. The ('ongregation of Cedar Spring, G 
Binn. 59; Sturgeon v. Waugli, 2 Yeates, 
476; Jackson d. McDonald (.-. McCall, 10 
Johns. 377 ; Hamilton v. Minor, 2 S. & R. 
70; Ili-rlev I'. Bidweli,9Coun.477 ; Hall 
r. Gittiugs. 2 Harr. & Johns. 112; Red- 
ding '-. McCubbin, 1 Har. & McIIen. 84. 
In Wooster v. Butler, 13 Conn. 309, it 
was said by Church, ,!., that traditionary 
evidence was receival>le, in Connecticut, to 
prove the boundaries of land between in- 



CHAP, vn.] 



OF ANCIENT POSSESSIONS. 



177 



it be of boundary or of right of common by custom, or the like, 
evidence of reputation is admitted onl}- under the qualifications 
already stated, requiring competent knowledge in the declarants, 
or persons from whom the information is derived, and that they 



dividual proprietors. But this dictum 
was not called for in the case ; for tlie 
question was, whether there had anciently 
been a lii(/h)cai/ over a certain tract of up- 
hind ; wliich, being a subject of common 
and general interest, was clearly within 
the rule. It has, however, subsequently 
been settled as a point of local law in that 
State, that such evidence is admissible 
to prove private boundaries. Hinny v. 
Farnswortli, 17 Conn. 355, 363. In 
Petiiiffjlvaiiiii, reputation and hearsay are 
held entitled to respect, in a question of 
boundary, where from lapse of time there 
is great difticulty in proving the existence 
of the original landmarks. Nieman v. 
Ward, 1 \Vatts & Serg. 68. In Den d. 
Tate V. Southard, 1 Hawks, 45, the ques- 
tion was, whetlier the lines of the sur- 
rounding tracts of land, if made for those 
tracts alone, and not for the tract in dis- 
pute, might be shown by reputation to be 
the "known and visible boundur'ies " of the 
latter tract, within the fair meaning of 
those words in tlie statute of North Caro- 
lina, of 1791, c. 15. It was objected that 
the boundaries mentioned in the act were 
those only which had been expressly rec- 
ognized as the bounds of the particular 
tract in question, by some grant or mesne 
conveyance thereof ; but the objection was 
overruled. But in a subsequent case ( Den 
d. Sasser v. Herring, 3 Dever. Law Rep. 
310), tlie learned chief-justice admits, that, 
in that State, the rules of theconnnon law, 
in questions of private boundary, iiave 
been broken in upon. " We have," he re- 
marks, " in questions of boundary, given 
to the single declarations of a deceased 
individual, as to a line or corner, the 
weight of connnon reputation, and per- 
mitted sucli declarations to be proven ; 
under the rule, that, in questions of boun- 
dary, hearsay is evidence. Whether this 
is within the spirit and reason of the rule, 
it is now too late to inquire. It is the 
well-established law of this State. And if 
the propriety of the rule was now res 
intef/ra, perhaps the necessity of the case, 
arising from the situation of our country, 
and the want of self-evident termini of our 
lands, would require its adoption. For, 
although it sometimes leads to falsehood, 
it more often tends to the establishment 
of truth. From necessitj', we have, in 
this instance, sacrificed the principles upon 
*vhich the rules of evidence are founded." 



[Such declarations are admissible if made 
by persons deceased, while in possession 
of land owned bj' them, and in the act of 
pointing out the boundaries, and nothing 
appears to show an interest to misrepre- 
sent, Bartlett v. Emerson, 7 Gray (Mass.), 
174; but not otherwise. Long i*. Col- 
ton, lit) Mass. 414.] A similar course 
has been adopted in Tennessee. Beard 
V. Talbot, 1 Cooke, 142. In South 
Carolina, tlie declarations of a deceased 
survej^or, who originally surveyed the 
land, are admissible, on a question as 
to its location. Speer v. Coate, 3 Mc- 
Cord, 227; Blythe v. Sutherland, Id. 
258. In Kentucky, the latter practice 
seems similar to that in North Carolina. 
Smith V. Nowells, 2 Littell, 159; Smith 
V. Prewitt, 2 A. K. Marsh. 155, 158. In 
New Hampshire, the like evidence has 
in one case been held admissible, upon the 
alleged authority of the rule of the com- 
mon law, in 1 Phil. Evid. 182 ; but in the 
citation of the passage by the learned 
chief-justice, it is plain, from the omis- 
sion of part of the text, that the restriction 
of the rule to subjects of public or general 
interest was not under his consideration. 
Shepherd v. Thompson, 4 N. H. 213, 
214. More recently, however, it has 
been decided in that State, " that the dec- 
larations of deceased persons, who, from 
their situation, appear to have had the 
means of knowledge respecting private 
boundaries, and who had no interest to 
misrepresent, may well be admitted in 
evidence." Great Falls Co. v. Worster, 
15 N. H. 412, 437; Smith v. Powers, 
Id. 546, 564. [But see Wendell v. 
Abbott, 45 N. H. 349.] Subject to these 
exceptions, the general practice in this 
country, in the admission of traditionary 
evidence as to boundaries, seems to agree 
with the doctrine of the common law as 
stated in the text. In Weems v. Disney; 
4 Har. & McHen. 156, the depositions 
admitted were annexed to a return of 
commissioners, appointed under a statute 
of Maryland, " for marking and bounding 
lands, "and would seem, therefore, to have 
been admissible as part of the return, wli icli 
expressly referred to them; but no final 
decision was had upon the point, the suit 
having been compromised. In Buchanan 
V. Moore, 10 S. & R. 275, the point was 
whether traditionary evidence was ad- 
missible while the declarant was living. 



12 



178 



LAW OF EVIDENCE. 



[PAUT n. 



Le persons free from particular and direct interest at the time, 
and are since deceased.^ 

§ 146. Perambulations. In this connection may be mentioned 
the subject of perambulations. The writ de perambulatione faci- 
endd lies at common law, when two lords are in doubt as to 
tlie limits of their lordships, villas, &c., and by consent appear 
in chancery, and agree that a perambulation be made between 
them. Their consent being enrolled in chancery, a writ is 
directed to the sheriff to make the perambulation, by the oaths 
of a jurj^ of twelve knights, and to set up the bounds and limits, 
in certainty, between the parties.^ These proceedings and the 
return are evidence against the parties and all others in privity 
with them, on grounds hereafter to be considered. But the per- 
ambulation consists not only of this higher written evidence, but 
also of the acts of the persons making it, and their assistants, 
such as marking boundaries, setting up monuments, and the like, 
including their declarations respecting such acts, made during 
the transactions. Evidence of what these persons were heard to 
say upon such occasions is always received ; not, however, as 
hearsay, and under any supposed exception in favor of questions 
of ancient boundary, but as part of the res gestce, and explanatory 
of the acts themselves, done in the course of the ambit.^ Indeed, 
in the case of such extensive domains as lordships, they being 
matters of general interest, traditionary evidence of common 
fame seems also admissible on the other grounds which have 
been previously discussed.* 



By the Roman law, traditionary evi- 
dence of common fame seems to liave been 
deemed admissible, even in matters of 
private boundary. Mascard. De Probat. 
vol. i. p. Z'.)\, Concl. 3!)0. 

1 Supra, §§128-130, 135-137. It is 
held in New York, that, in ascertaining 
fiicts relative to the possession of and 
title to lands, wliich occurred more than a 
century before the time of trial, evidence 
is aduiissible which, in regard to recent 
events, could not be received; such as 
liistories of established credit as to public 
transactions; the recitals in public records, 
statutes, legislative journals, and ancient 
grants and charters ; judicial records ; an- 
cient maps, and dejiositions, and the like. 
But it is admitted that this evidence is 
always to be received with great caution, 
and with due allowance for its imperfi'C- 
tion, and its capability of misleading. Eo- 



gardus v. Trinity Church, Kinney's Law 
Compend. for 1850, p. 159. [See also, as to 
the admissibility of ancient maps and sur- 
veys, Ross V. Rhoads, 15 Penn. St. 1(13 ; 
Penny Pot Landing v. Philadelphia, Ui Id. 
79 ; Whitehouse v. Bickford, 'J Foster, 
471; Adams v. Stanyan, 4 Id. 405 ; Dan- 
iel V. Wilkin, 12 English Law & Eq. 
547.] 

2 5 Com. Dig. 732, Pleader, 3 G. ; F. 
N. B. [133] D.; 1 Story on Eq. Jurisp. 
§ 611. See also Stat. 13 Geo. III. c. 81, 
§ 14; Stat. 41 Geo. III. c. 81, § 14; Stat. 
68 Geo. III. c. 45, § 10. 

8 Weeks v. Sparke, 1 M. & S. 687, per 
Ld. Ellenborougli ; supra, § 108; EUicott 
V. Pearl, 1 McLean, 211. 

i Supra, §§ 128-137. The writ de per- 
nmliuhttione /iiciiiida is not kiu)wn to havo 
been adopted in practice in the United 
States ; but in several of the States, rcme- 



CHAP, vn.] 



OF ANCIENT POSSESSIONS. 



179 



dies somewhat similar in principle have 
been provided by statutes. In some of the 
States, provision is only made for a peri- 
odical perambulation of the boundaries 
of towns by the selectmen, LL. Maine 
Rev. 1840, c. 5; LL. N. H. 1842, c. 
37 ; Mass. Rev. Stats, c. 15 ; LL. Conn. 
Rev. 1849, tit. 3, c. 7 ; or, for a definite 
settlement of controversies respecting 
them, by the public surveyor, as in New 
York, Rev. Code, pt. i. c. 8, tit. 6. In 
others, the remedy is extended to the 



boundaries of private estates. See Elmer's 
Digest, pp. 98, 99, 315.316 ; New Jersey, 
Rev. St. 1846, tit. 22, e. 12; Virginia, 
Rev. Code, 1819, vol. i. pp. 358, 359. A 
very complete summary remedy, in all 
eases of disputed boundary, is provided 
in the statutes of Delaware, Revision of 
1829, pp. 80, 81, tit. Boundaries, III. To 
perambulations made under any of tliese 
statutes, the principles stated m the text, 
it is conceived, will apply. 





180 LAW OF EVIDENCE. [PAE,T II. 



CHAPTER VIII. 

OF DECLARATIONS AGAINST INTEREST. 

§ 147. Declarations against interest. A third exception to tlie 
rule, rejecting hearsay evidence, is allowed in the case of declara- 
tions and entries made hy persons since deceased, and against the 
interest of the persons making them, at the time when they were 
made. We have already seen,i that declarations of third persons, 
admitted in evidence, are of two classes : one of which consists 
of written entries, made in the course of official duty or of pro- 
fessional employment; where the entry is one of a number of 
facts which are ordinary and usually connected with each other, 
so that the proof of one affords a presumption that the others 
have taken place ; and, therefore, a fair and regular entry, such 
as usually accompanies facts similar to those of which it speaks, 
and apparently contemporaneous with them, is received as original 
presumptive evidence of those facts. And, the entry itself being 
original evidence, it is of no importance, as regards its admissi- 
bility, whether the person making it be yet living or dead. But 
declarations of the other class, of which we are now to speak, are 
secondary evidence, and are received only in consequence of the 
death of the person making them. This class embraces not only 
entries in books, but all other declarations or statements of facts, 
whether verbal or in writing, and whether they were made at the 
time of the fact declared or at a subsequent day.^ But, to render 
them admissible, it must appear that the declarant is deceased ; 
that he possessed competent knowledge of the facts, or that it 
was his duty to know them ; and that the declarations were at 
variance with his interest.^ When these circumstances concur, 

1 Supra, ^^ 115, 116, and cases there 303; Goss w. Watlington, 3 Brod. & Bing. 

cited. 132 ; Strode v. Winchester, 1 Dick. 397 ; 

- Ivat «;. Finch, 1 Taunt. 141 ; Doe v. Barker v. Ray, 2 Uuss. 63, 76, and cases 
Jones, 1 Campb. 367 ; Davies f. Pierce, 2 in p. 67, n. ; Warren v. Greenville, 2 
T. R. 63, and Holloway v. Raikes, there Stra. 1120; 8. c. 2 Burr. 1071, 1072; Doe 
cited ; Doe v. Williams, Cowp. 621 ; v. Turford, 3 B. & Ad. 898, per Parke, J. ; 
Peaceable v. Watson, 4 Taunt. 16; Stan- Harrison v. Blades, 3 Campb. 457; Man- 
ley V. White, 14 East, 3:32, 341, per Ld. ning v. Leachmere, 1 Atk. 453. 
EUenborough; Haddow v. Parry, 3 Taunt. » Short v. Lee, 2 Jac. & Walk. 464, 



CHAP, ym.] OF DECLARATIONS AGAINST INTEEEST. 



181 



the evidence is received, leaving its weight and value to be deter- 
mined by other considerations. 

§ 148. Ground of their admissibiUty. The ground upon which 
this evidence is received, is the extreme improhahility of its falsehood. 
The regard which men usually pay to their own interest is deemed 
a sufficient security, both that the declarations were not made 
under any mistake of fact, or want of information on the part of 
the declarant, if he had the requisite means of knowledge, and 
that the matter declared is true. The apprehension of fraud in 
the statement is rendered still more improbable from the circum- 
stance, that it is not receivable in evidence imtil after the death 
of the declarant ; and that it is always competent for the party 
against whom sucli declarations are adduced to point out any 
sinister motive for making them. It is true, that the ordinary 
and highest tests of the fidelity, accuracy, and completeness of 
judicial evidence are here wanting : but their place is, in some 
measure, supplied by the circumstances of the declarant ; and 
the inconveniences resulting from the exclusion of evidence, 
having such guaranties for its accuracy in fact, and from its 
freedom fi-om fraud, are deemed much greater, in general, than 
any which would probably be experienced from its admission.^ 

§ 149. Must be against interest. In some cases, the courts seem 



488, per Sir Thomas Plumer, M. R; Doe 
V. Robson, 15 East, 32, 34; Higham v. 
Eidgwav, 10 East, 109, per Ld. Ellen- 
borough; Middleton v. Melton, 10 B. & C. 
317, 327, per Parke, J. ; Regina v. Worth, 
4 Ad. & El. jr. s. 137, per Ld. Denman ; 
2 Smith's Lead. Gas. 193, n., and cases 
there cited ; Spargo v. Brown, 9 B. & 
C. 935 [Percival v. Nanson, 21 L. J. 
N. 8. Exch. 1]. The interest with which 
the declarations were at variance must 
be of a pecuniary nature. Davis v. Lloyd, 
1 C. & K. 276. [The amount of interest is 
immaterial on the question of admissi- 
bility. Orrett v. Corser, 21 Beav. 62. 
But the mere making a contract is not 
necessarily against interest from the fact 
that the party is obliged thereby. Reg. 
V. Worth, 4 Q. B. 132.] Tlie apprehen- 
sion of possible danger of a prosecution 
is not sufficient. The Sussex Peerage 
Case, 11 Clark & Fin. 85. In Holladay 
r. Littlepage, 2 Munf. 316, the joint dec- 
larations of a deceased shipmaster and 
the living owner, that the defendant's 
passage-money had been paid by the 
plaintiff, were held admissible, as parts 



of the res gestae, being contemporaneoufl 
witli the time of sailing. This case, 
therefore, is not opposed to the others 
cited. Neither is Sherman v. Crosby, 11 
Johns. 70, where a receipt of payment of 
a judgment recovered by a third person 
against the defendant was held admissi- 
ble in an action for the money so paid,^^ 
by the party paying it, lie having had ^ 
authority to adjust the demand, and the 
receipt being a documentary fact in the 
adjustment; though the attorney who 
signed the receipt was not produced, nor 
proved to be dead. In auditing the ac- 
counts of guardians, administrators, &c., 
the course is, to admit receipts as prima 
facie sufficient vouchers. Shearman v. 
Akins, 4 Pick. 283 ; Nichols v. Webb, 8 
Wheat. 326 ; Welsh v. Barrett, 15 ALass. 
380; Wilbur v. Selden, 6 Cowen, 1(52; 
Farmers' Bank v. Whitehill, 16 S. & R. 
89, 90 ; Stokes v. Stokes, 6 Martin, n. s. 
351. 

1 Phil. & Am. on Evid. 307, 308 ; 1 
Phil. Evid. 293, 294 ; Gresley on Evid. 
221 [Bird v. Hueston, 10 Critclifield 
(Oliio), 418]. 






182 ' LAW OF EVIDENCE. [PAET U. 

to have admitted this evidence, without requiring proof of adverse 
interest in the declarant ; while in others stress is laid on the fact, 
that such interest had already appeared, aliunde, in the course of 
the trial. In one case it was argued, upon the authorities cited, 
that it was not material that the declarant ever had any actual 
interest, contrary to his declaration ; but this position was not 
sustained by the court. ^ In many other cases, where the evi- 
dence consisted of entries in books of account, and the like, they 
seem to have been clearly admissible as entries made in the ordi- 
nary course of business or duty, or parts of the res gestce, and 
therefore as original and not secondary evidence ; though the 
fact that they were made against the interest of the person 
making them was also adverted to.^ But in regard to declara- 
tions in general, not being entries or acts of the last-mentioned 
character, and which are admissible only on the ground of having 
been made contrary to the interest of the declarant, the weight 
6f authority, as well as the principle of the exception we are 
considering, seem plainly to require that such adverse interest 
should appear, either in the nature of the case or from extraneous 
proof. ^ And it seems not to be sufficient, that, in one or more 
points of view, a declaration may be against interest, if it appears, 
upon the whole, that the interest of the declarant would be rather 
promoted than impaired by the declaration.^ 

§ 150. Entries in books of account. Though the exception we 
are now considering is, as we have just seen, extended to decla- 
rations of any kind, yet it is much more frequently exemplified 

1 Barker v. Ray, 2 Russ. 63, G7, 68, of such evidence in the case was disposed 

cases cited in note; Id. p. 76. Upon tiiis of in another manner, 
point, Eldon, Lord Cliancellor, said : - It has been questioned, wh.ether 

" Tlie cases satisfy me, that evidence is there is any difference in the princij)Ie of 

admissible of declarations made by per- admissibility between a written entry and 

sons who have a competent knowledjje an oral declaration of an agent concern- 

of the subject to which such declarations ing his having received money for his 

refer, and where their interest is con- principal. See s((/<m, § 113, n. ; Fursdon 

cerned; and the only doubt I have enter- v. Clogg, 10 M. & \V. 672 ; infra, § 162, n. 
tained was as to the position that you ^ liigham r. Ridgway, 10 East, 10!); 

are to receive evidence of declarations Warren v. Greenvilic, 2 Stra. 1129, ex- 

where there is no interest. At a certain pounded by Lord Mansfield, in 2 Burr. 

^ period of my professional life, I should 1071, 1072;" Gleadow v. Atkin, .'3 Tyrwli. 

have said that this doctrine was quite 3U2, 303; 1 Cromp. & Mees. 423,' 424; 

new to me. I do not mean to say more Short i-. Lee, 2 Jac & W. 4y!»; Marks v. 

than that I still doubt concerning it. Lahee, .3 Bing. N. C. 408, 420, per 

When I have occasion to express my I'arke, J. ; Barker c. Ray, 2 Russ. 63, 76; 

opinion judicially upon it, I will do so ; supra, § 147, and cases in notes, 
but I desire not to be considered as * riiil. & Am. on Evid. 320; 1 Phil, 

bound by that, as a rule of evidence." Evid. 305, 306; Short v. Lee, 2 Jac. & 

The objection arising from the rejection W. 464. 



CHAP. Vni.] OF DECLARATIONS AGADSTST IKTEREST. 



183 



in documentary evidence, and particularly in entries in books of 
account. Where these are books of collectors of taxes, stewards, 
bailiffs, or receivers, subject to the inspection of others, and in 
which the first entry is generally of money received, charging 
the party making it, they are, doubtless, within the principle of 
the exception.^ But it has been extended still farther, to include 
entries in private hooks also, though retained within the custody 
of their owners : their liability to be produced on notice, in trials^ 
being deemed sufficient security against fraud ; and the entry 
not being admissible, unless it charges the party making it with 
the receipt of money on account of a third person, or acknowledges 
the payment of money due to himself ; in either of which cases it 
would be evidence against him, and therefore is considered as 
sufficiently against his interest to bring it within this exception.^ 
The entry of a mere memorandum of an agreement is not suffi- 
cient. Thus, where the settlement of a pauper was attempted 
to be proved by showing a contract of hiring and service, the 
books of his deceased master, containing minutes of his contracts 
with his servants, entered at the time of contracting with them, 
and of subsequent payments of .their wages, were held inadmissi- 
ble ; for the entries were not made against the writer's interest, 
for he would not be liable unless the service were performed, nor 
were they made in the course of his duty or employment.^ 



1 Barry v. Bebbington, 4 T. R. 514 ; 
Goss V. Watlington, \^ Brod. & Bing. 182; 
Middleton v. Melton, 10 B. & C. 317; 
Stead V. Heaton, 4 T. R. 669 ; Short v. 
Lee, 2 Jac. & W. 464; Whitmarsh v. 
George, 8 B. & C. 556; Dean, &c., of VAj 
V. Caldecott, 7 Bing. 433 ; Marks v. La- 
hee, 3 Bing. N. ^C. 408; Wynne v. 
Tyrwhitt, 4 B. & Aid. 376 ; De Rutzen v. 
Farr, 4 Ad. & El. 52; 2 Smith's Lead. 
Cas. 193, n. ; Plaxton v. Dare, 10 B. & C. 
17, 19; Doe v. Cartwright, Ry. & M. 62. 
An entry by a steward in his books, in 
his own favor, unconnected with otlier 
entries against him, is held not admissi- 
ble to prove the facts stated in such 
entry. Knight v. Marquis of Waterford, 
4 Y. & C. 284. But where the entry goes 
to show a general balance in his own 
favor, it has been ruled not to affect the 
admissibility of a particular entry charg- 
ing himself. Williams v. Geaves, 8 C. & 
P. 592 [Rowe v. Brenton, 3 M. & U. 268]. 
And see Musgrave r. Emerson, 16 Law 
Jour. Q. B. 174. [An ancient book, 
kept among the records of a town, pur- 



porting to be the " Selectmen's book of 
accounts with the treasury of the town," 
is admissible in evidence of tlie facts 
therein stated ; and, the selectmen being 
at the same time assessors, an entry in 
such book of a credit by an order in 
favor of the collector for a discount of a 
particular individual's taxes was held to 
be evidence of the abatement of the tax 
of such individual. Boston v. Wey- 
mouth, 4 Gush. 538. j 

2 Warren v. Greenville. 2 Stra. 1029 ; 
s. c. 2 Burr. 1071, 1072; Higham v. Ridg- 
way, 10 East, 109 ; INIiddleton v. Melton, 
10 liarn. & Cress. 317. In those States 
of the Union in which the original entries 
of the part}', in his own account books, 
may be evidence for liim, and where, 
therefore, a false entry may sometimes 
amount to the crime of forgery, there is 
much stronger reason for admitting the 
entries in evidence against third persons. 
See also Hoare v. Coryton, 4 Taunt. 560. 

3 Kegina v. Worth, 4 Ad. & El. n. s. 
132. 



184 LAW OF EVIDENCE. [PAET H. 

§ 151. Admissible, though the entry itself is the only evidence of 
the charge. Where the entry is itself the only evidence of the 
charge, of which it shows the subsequent liquidation, its admis- 
sion has been strongly opposed, on the ground, that, taken 
together, it is no longer a declaration of the party against his 
interest, and may be a declaration ultimately in his own favor. 
This point was raised in the cases of Higham v. Ridgivay, where 
an entry was simply marked as paid in the margin ; and of Bowe 
V. Brenton, which was a debtor and creditor account, in a toller's 
books, of the money received for tolls, and paid over. But in 
neither of these cases was the objection sustained. In the former, 
indeed, there was evidence aliunde, that the service charged had 
been performed ; but Lord Ellenborough, though he afterwards 
adverted to this fact, as a corroborating circumstance, first laid 
down the general doctrine that " the evidence was properly ad- 
mitted, upon the broad principle on which receivers' books have 
been admitted." But in the latter case there was no such proof; 
and Lord Tenterden observed, that almost all the accounts which 
were produced were accounts on both sides, and that the objec- 
tion would go to the very root of that sort of evidence. Upon 
these authorities, the admissibility of such entries may perhaps be 
considered as established.^ And it is observable, in corroboration 
of their admissibility, that in most, if not all, of the cases, they 
appear to have been made in the ordinary course of business or 
of duty, and therefore were parts of the re8 gestce? 

§ 152. Matters not against interest. It has also been questioned, 
whether the entry is to be received in evidence of matters which, 

1 Higham v. "Ridgway, 10 East, 109 ; entry in the tradesman's book. The 

Rowe V. IJrenton, 3 Man. & II. :i07 ; 2 same objection, indeed, was takon here, 

Smith's Lead. Cas. 100, n. In Williams by the learned counsel for the defendant, 

i;. Geaves, 8 C. & V. 502, the entries in as in the cases of Higham v. Hidgway, 

a deceased stew.ird's acco\int were ad- and of Rowe v. Brenton; namely, that 

mitted, though the balance of the account the proof, as to interest, was on both 

was in his favor. See also Doe i'. Tyler, sides, and neutralized itself : but tlie 

4 M. & P. 877, there cited. Doe v. Whit- objection was not particularly noticed by 

comb, 15 Jur. 778. Littledale, J., before whom it was tried; 

- In Dowe V. Vowles, 1 M. & Rob. 2G1, though the same learned judge afterward 

the evidence offered was merely a trades- intimated his opinion, by observing, in 

man's hill, receipted in full ; which was rejily to an objection similar in principle, 

properly rejected by I-ittledale, J., as it in Kowe v. Brenton, that "a man is not 

liad not the merit of an original entry : likely to charge himself, for the j)urpose 

for, tiiough the receijit of payment was of getting a discharge." [In Doe v. Bur- 

against the party's interest, yet the main ton, C. & V. 254, Mr. Baron Gurney 

fact to be established was the perform- seems to have followed Doe v. Vowles ; 

ance of the services charged in the bill, but neither would now probably be fol- 

the appearance of which denoted that lowed in England. Taylor, Evid. § 010.] 

better evidence existed, in the original See also infm, § 152. 



CHAP. Vin.] OF DECLAEATIONS AGAIXST INTEREST. 185 

though forming part of the declaration^ were not in themselves 
agaiiist the interest of the declarant. This objection goes not 
only to collateral and independent facts, but to the class of entries 
mentioned in the preceding section ; and would seem to be over- 
ruled b}' those decisions. But the point was solemnly argued in 
a later case, where it was adjudged that though, if the point 
were now for the first time to be decided, it would seem more 
reasonable to hold that the memorandum of a receipt of payment 
was admissible only to the extent of proving that a payment had 
been made, and the account on which it had been made giving 
it the effect only of verbal proof of the same pajonent ; yet, that 
the authorities had gone beyond that limit, and the entry of a 
payment against the interest of the party making it had been 
held to have the effect of proving the truth of other statements 
contained in the same entry, and connected with it. Accordingly, 
in that case, where three persons made a joint and several promis- 
sory note, and a partial payment was made by one which was 
indorsed upon the note in these terms, " Received of W. D. the 
sum of £280, on account of the within note, the £300" (which 
was the amount of the note) " having been originally advanced to 
E. 5".," for which payment an action was brought by the party 
paying, as surety, against E. H., as the principal debtor ; it was 
held, upon the authority of Higham v. Ridgway, and of Doe v. 
Rohson, that the indorsement, the creditor being dead, was ad- 
missible in evidence of the whole statement contained in it ; and, 
consequently, that it was i^rima facie proof, not only of the pay- 
ment of the money, but of the person who was the principal 
debtor, for whose account it was paid ; leaving its effect to be 
determined by the jury.^ 

1 Davies r. Humphrevs, 6 Mees. & fore, though evidence of the fact of the 
Welsh. 15o, 166. See also Stead v. Hea- arrest, it was held to he no evidence of 
ton, 4 T. R. 669; Roe v. Rawlings, 7 the place where the arrest was made, 
East, 279 ; Marks v. Lahee, 3 Bing. though this was stated in the return. The 
N. C.'iOS. The case of Chambers v. Ber- learned counsel also endeavored to main- 
nasconi, 1 Cr. & Jer. 451, 1 Tyrwh. 33-5, tain the admissibility of the under-slier- 
which may seem opposed to these deci- iff's return, in proof of the place of 
sions, turned on a different principle, arrest, as a written declaration by a 
That case involved the effect of an un- deceased person of a fact against his 
der-sheriff's return, and the extent of the interest ; but the court lield, that it did 
circumstances which the sheriff's return not belong to that class of cases. 1 
ouglit to include, and as to which it would Tyrwh. 33.3, per Bayley, B. Afterwards, 
be conclusive evidence. It seems to have tliis judgment was affirmed in the Ex- 
been considered, that the return could chequer Chamber, 4 TyrAvh. 531 ; 1 Cr. 
properly narrate only those things which Mees. & Ros. 347, 368 ; the court being 
it was the officer's duty to doj and, there- "all of opinion, that whatever effect may 



186 LAW OF EVIDENCE. [PAKT H. 

§ 153. Competency of declarant. In order to render declara- 
tions against interest admissible, it is not necessary that the decla- 
rant should have been competent^ if living, to testify to the facts 
contained in the declaration ; the evidence being admitted on 
the broad ground, that the declaration was against the interest 
of the party making it, in the nature of a confession, and, on that 
account, so probably true as to justify its reception.^ For the 
same reason, it does not seem necessary that the fact should have 
been stated on the personal knowledge of the declarant.^ Neither 
is it material whether the same fact is or is not provable by other 
witnesses who are still living.^ Whether their testimony, if 
produced, might be more satisfactory, or its non-production, if 
attainable, might go to diminish the weight of the declarations, 
are considerations for the jury, and do not affect the rule of 
law. 

§ 154. Entries by agents, stewards, &c. But where the C'V'idence 
consists of entries made by persons acting for others, in the 
capacity of agents, stetvards, or receivers, some proof of such 
agency is generally required previous to their admission. The 
handwriting, after thirty years, need not be proved."^ In regard 
to the proof of official character, a distinction has been taken 
between public and private offices, to the effect that, where the 
office is public and must exist, it may ahvays be presumed that a 
person who acts in it has been regularly appointed ; but that, 
where it is merely private, some preliminary evidence must be 
adduced of the existence of the office, and of the appointment of 

be due to an entry, made in the course of where it was marie merely in the course 

any office, reporting facts necessary to of a man's duty, it does not go beyond 

the performance of a duty, tlie statement tlie matters wliich it was his duty to 

of other circumstances, liowever natu- enter. Pcrcival v. Nanson, 7 Eng. Law 

rally they may be thought to find a place & Eq. 538, per Pollock, C B. ; s. c. 7 

in the narrative, is no i)roof of tliose Excii. 1. 

circun)stances." See also Thompson i*. ^ Doe v. Robson, 15 East, 32 ; Short 

Stevens, 2 Nott & McC. 4!)3 ; Sherman v. v. Lee, 2 Jac. & W. 4(54, 480 ; Glcadow 

Crosby, 11 Johns. 70. Whether a verbal v. Atkin, 1 Cr. & Mecs. 410 ; Middleton v. 

declaration of a deceased agent or officer, Melton, 10 B. & C. 317, 320; Bosworth 

made while lie was paying over money to v. Crotchet, Pii. & Am. on Evid. o48, n. 
his princii)al or superior, and designating ^ Crease v. Barrett, 1 Cr. Mees. & R. 

the i)erson from whom he received a par- 910. 

ticular sum entered by him in his books, 3 Middleton i;. Melton, 16 B. & C. 327, 

is admissible in evidence against that per- per Parke, J.; Barry v. Bebbington, 4 

son, qiKvrc ; and see Fursdon r. Clogg, 10 T. R. 514. 

M. & W. 572. The true distinction, more * Wynne r. Tyrwhift, 4 B. & Aid. 876. 

recently taken, is tliis, — tiiat wiiorc the [Though not in the declarant's handwrit- 

entry is admitted as being against the ing, they are admissible if authorized or 

interest of tiie party making it, it carries adopted by him ; otherwise not. Baron 

with it the whole statement; but that, de Rut7en y. Farr, 4 A. & E. 63.] 



CHAP. Tin.] OF DECLABATIONS AGAINST INTEKEST. 187 

the agent or incumbent.^ Where the entrj-, by an agent, charges 
himself in the first instance, that fact has been deemed sufficient 
proof of his agency ; ^ but where it was made by one styling him- 
self clerk to a steward, that alone was considered not sufficient 
to prove the receipt, by either of them, of the money therein 
mentioned.^ Yet, where ancient books contain strong internal 
evidence of their actually being receivers' or agents' books, they 
may, on that ground alone, be submitted to the jury.* Upon the 
general question, how far mere antiquity in the entry will avail 
as preliminary proof of the character of the declarant or party 
making the entry, and how far the circumstances which are 
necessary to make a document evidence must be proved aliunde^ 
and cannot be gathered from the document itself, the law does 
not seem perfectly settled.^ But where the transaction is ancient, 
and the document charging the party with the receipt of money 
is apparently genuine and fair, and comes from the proper reposi- 
tory, it seems admissible, upon the general principles already dis- 
cussed in treating of this exception.^ 

§ 155. Books of deceased rector. There is another class of 
entries admissible in evidence which sometimes has been regarded 
as anomalous, and at others has been deemed to fall within the 
principle of the present exception to the general rule ; namely, 
the private books of a deceased rector or vicar, or of an ecclesias- 
tical corporation aggregate, containing entries of the receipt of 
ecclesiastical dues, when admitted in favor of their successors, or 

* Short V. Lee, 2 Jac. & TV. 464, 468. the entries was more than a hundred 

2 Doe I'. Stacy, 6 Car. & P. 139. years old. Davies v. Morgan, 1 Cr. & 

3 De Rutzen v. Farr, 4 Ad. & El. 53. Jer. 587, 590, 593, per Ld. Lyndhurst, 
And see Doe v. Wittcomb, 15 Jur. 778. C. B. In another case, which was a bill for 

* Doe V. Lord Geo. Thynne, 10 East, tithes, against which a modus was alleged 
206, 210. in defence, a receipt of more than fifty 

5 In one case, where the point in issue years old was offered, to prove a money 

was the existence of a custom for the ex- payment therein mentioned to have been 

elusion of foreign cordwainers from a cer- received for a prescription rent in lieu of 

tain town, an entry in tlie corporation tithes; but it was held inadmissible, with- 

books, signed by one acknowledging him- out also showing who the parties were, 

self not a freeman, or free of the corpora- and in what character they stood. Manby 

tion, and promising to pay a fine assessed v. Curtis, 1 Price, 225, per Thompson, 

on him for breach of the custom; and C. B., Graham, B., and Richards, B. ; 

another entry, signed by two others, stat- Wood, B., clissentiente. 

ing that they had distrained and ap- •> See Phil. & Am. on Evid. 331, n. (2) ; 

praised nine pairs of shoes from another 1 Phil. Evid. 310, n. (6), and cases tliere 

person, for a similar oflTence, — were sev- cited; Fenwick v. Read, 6 Madd. 8, per 

erally held inadmissible, without previ- Sir J. Leach, Vice-Ch. ; Bertie v. Beau- 

ously offering some evidence to show by mont, 2 Price, .307; Bishop of Meath v. 

whom the entries were subscribed, and Marquis of Winchester, 3 Bing. N. C. 

in what situation the several parties 183, 203 [Doe v. Michael, 24 Eng. Law 

actually stood; although the latest of & Eq. 180]. 



188 LAW OF EVIDENCE. [PAET H. 

of parties claiming tlie same interest as the maker of the entries. 
Sir Thomas Plumer, in a case before him,i said : " It is admitted, 
that the entries of a rector or vicar are evidence for or against 
his successors. It is too late to argue upon that rule, or upon 
what gave rise to it ; whether it was the cursus Seaccarii, the 
protection of the clergy, or the peculiar nature of property in 
tithes. It is now the settled law of the land. It is not to be pre- 
sumed that a person, having a temporary interest only, will insert 
a falsehood in his book from which he can derive no advantage. 
Lord Kenyon has said, that the rule is an exception ; and it is so : 
for no other proprietor can make evidence for those who claim 
under him, or for those who claim in the same right and stand in 
the same predicament. But it has been the settled law, as to 
tithes, as far back as our research can reach. We must, there- 
fore, set out from this as a datum ; and we must not make com- 
parisons between this and other corporations. No corporation 
sole, except a rector or vicar, can make evidence for liis successor." 
But the strong presumption that a person, having a temporary 
interest only, will not insert in his books a falsehood, from wliich 
he can derive no advantage, which evidently and justly had so 
much weight in the mind of that learned judge, would seem to 
bring these books within the principle on which entries, made 
either in the course of duty or against interest, are admitted. 
And it has been accordingly remarked, by a writer of the first 
authority in this branch of the law, that after it has been deter- 
mined that evidence may be admitted of recei^Dts of payment, 
entered in private books by persons who are neither obliged to 
keep such books nor to account to others for the money received, 
it does not seem any infringement of principle to admit these 
books of rectors and vicars. For the entries cannot be used by 
those who made them; and there is no legal privity betwee'i 
them and their successors. The strong leaning, on their part, in 
favor of the church, is nothing more, in legal consideration, than 
the leaning of every declarant in favor of his own interest, affect- 
ing the weight of the evidence, but not its admissibility. General 
observations have occasionally been made respecting these books, 
which may seem to authorize the admission of any kind of state- 
ment contained in them. But such books are not admissible, 
except where the entries contain receipts of monej'' or ecclesias- 

1 Short V. Lee, 2 Jac. & W. 177, 178. 



CHAP. Vin.] OF DECLAHATIONS AGAESTST DsTEEEST. 189 

tical dues, or are otherwise apparently prejudicial to the interests 
of the makers, in the manner in which entries are so considered 
in analogous cases.^ And proof will be required, as in other 
cases, that the writer had authority to receive the money stated, 
and is actually dead ; and that the document came out of the 
proper custody .^ 

1 Phil. & Am. on Evid. 822, 323, and « Gresley on Evid. 223, 224; Carring- 

cases in n. (2) and (3); 1 Phil. Evid. 308, ton v. Jones, 2 Sim. & Stu. 135, 140; 
n. (1), (2) ; Ward v. Pomfret, 6 Sim. 475. Perigal v. Nicholson, 1 Wight w. 63. 



190 



LAW OF EVIDENCE. 



[PABT n. 



CHAPTER IX. 



OF DYING DECLARATIONS. 

§ 156. Dying declarations. A fourth exception to the rule, reject- 
ing hearsay evidence, is allowed in the case of dying declarations. 
The general principle on which this species of evidence is admit- 
ted, was stated by Lord Chief Baron Eyre to be tliis, — that they 
are declarations made in extremity, when the party is at the point 
of death, and when every hope of this world is gone ; when every 
motive to falsehood is silenced, and the mind is induced, by the 
most powerful considerations, to speak the truth. A situation so 
solemn and so awful is considered by the law as creating an obli- 
gation equal to that which is imposed by a positive oath in a 
court of justice.! It was at one time held, by respectable author- 
ities, that this general principle warranted the admission of dying 
declarations in all cases, civil and criminal ; but it is now well 
settled that they are admissible, as such, only in cases of homi- 
cide, "where the death of the deceased is the subject of the 
charge, and the circumstances of the death are the subject of 
the dying declarations." ^ The reasons for thus restricting it may 



I Rex V. "Woodcock, 2 Leach's Cr. Cas. 
256, 567 ; Drummond's case, 1 Leach's 
Cr. Cas. 378. The rule of the Roman 
civil law was the same. " Morti proxi- 
mum, sive moribundum, non prsesumen- 
dum est mentiri, nee esse immemorem 
salutis aeternee ; licet non prjesumatursem- 
per dicere verum. Mascard. De Probat. 
Concl. 1080. In the earliest reported case 
on this subject, the evidence was admitted 
without objection, and apparently on this 
general ground. Rex v. Reason et al., 6 
State Tr. 195, 201. The rule of the com- 
mon law, under which tiiis evidence is 
admitted, is held not to be repealed by, 
nor inconsistent with, those express pro- 
visions of constitutional law, which secure 
to the person accused of a crime the right 
to be confronted with the witnesses against 
liim. Anthony v. The State, 1 Meigs, 
205; Woodsides v. The State, 2 How. 
(Miss.) 665 [Campbell v. State. 11 Ge6. 
353; Brown I'. Com.. 73 Pa. St. 321 ; Com. 
«;. Carey, 12 Cusli. (Mass.) 240; Robbins 
V. State, 8 Ohio St. n. s. 131J. 



2 Rex V. Mead, 2 B. & C. 005. In this 
case the prisoner had been convicted of 
perjury, and moved for a new trial, be- 
cause convicted against the weight of evi- 
dence ; after which he shot the prosecutor. 
Upon showing cause against tlie rule, the 
counsel for the prosecution offered the 
dying declarations of the prosecutor rela- 
tive to the fact of perjury ; but the evi 
dence was adjudged inadmissible. The 
same point was ruled by Bayley, J., in 
Rex V. Hutchinson, who was indicted for 
administering poison to a woman preg- 
nant, but not quick with child, in order 
to procure abortion. 2 B. & C. 608, n. 
This doctrine was well considered and 
approved in Wilson v. Boerem, 15 Johns. 
2M6. In Rex v. Lloyd et <il., 4 C. & P. 
23;}, such declarations were rejected on a 
trial for robbery. Upon an indictment 
for the murder of A, by jjoison, which 
was also taken by B, who died in conse- 
quence, it was held that the dying dec- 
larations of B were admissible, though the 
prisoner was not indicted for murdering 



CHAP, rx.] 



OF DTESTG DECLARATIONS. 



191 



be, that the credit is not in all eases due to the declarations of a 
dying person : for his body may have survived the powers of his 
mind ; or liis recollection, if his senses are not impaired, may not 
be perfect ; or, for the sake of ease, and to be rid of the impor- 
tunity and annoyance of those around him, he may sa}', or seem 
to say, whatever they may choose to suggest.^ These, or the like 
considerations, have been regarded as counterbalancing the foice 
of the general principle above stated ; leaving this exception to 
stand only upon the ground of the public necessit}^ of preserving 
the lives of the community by bringing manslayers to justice. 
For it often happens, that there is no third person present to be 
an eye-witness to the fact ; and the usual witness in other cases 
of felony, namely, the party injured, is himself destroyed.^ But, 
in thus restricting the evidence of dying declarations to cases of 
trial for homicide of the declarant, it should be observed that 
this applies only to declarations offered on the sole ground that 
they were made in extremis ; for where they constitute part of the 
res gestce, or come within the exception of declarations against 
interest, or the like, they are admissible as in other cases, irre- 
spective of the fact that the declarant was under apprehension 
of death.^ 



her, Rex v. Baker, 2 M. & Rob. 53 [State v. 
Cameron, 2 Chand. 172 ; State v. Tirrell, 
12 Rich. ( S. C. ) 321 ; nor will sucli declara- 
tions be admitted in civil cases, Daily v. 
N. Y. & N. H. R. R. Co., 32 Conn. 356 ; 
though it has been allowed in one or two 
instances, Malaun v. Ammon, 1 Grant's 
(Pa.) Cas. 123; McFarland v. Shaw, 2 
Law Repos. (N. C.) ; but it was from a 
misapprehension, says Judge Redfield, 
" of the true grounds upon which the dec- 
larations are receivable as testimony. 
It is not received upon any other ground 
than that of necessity, in order to prevent 
murder going unpunished. What is said 
in the books about the situation of the 
declarant, he being virtually under the 
most solemn sanction to speak the truth, 
is far from presenting the true ground of 
the admission ; for, if that were all that is 
requisite to render the declarations evi- 
dence, the apprehension of death should 
liave the same effect, since it would place 
the declarant under the same restraint as 
if the apprehension were founded in fact. 
But both must concur, both the fact and 
the apprehension of being in extremis. 
And, although it is not indispensable 
that there should be no other evidence of 
the same facts, the rule is no doubt based 



upon the presumption that in the major- 
ity of cases there will be no other equally 
satisfactory proof of the same facts. This 
presumption, and the consequent proba- 
bility of the crime going unpunished, is un- 
questionably the chief ground of this ex- 
ception in the law of evidence. And the 
great reason why it could not be received 
generally, as evidence in all cases where 
the facts involved should thereafter come 
in question, seems to be that it wants one 
of the most important and indispensable 
elements of testimony, that of an oppor- 
tunity for cross-examination by the party 
against whom it is offered." But great 
latitude of rebuttal of such evidence will 
be allowed the prisoner, because of its 
anomalous character. Com. v. Cooper, 5 
Allen (Mass.), 495; Ashton's case, 2 
Lewin, C. C. 147. Exclamations by one 
who is put in mortal terror by an assault 
are equally reliable with declarations 
made in the dread of impending deatli. 
Wagner's case, 61 Maine, 178]. 

^ Jackson v. Kntffen, 2 Johns. 31, 35, 
per Livingston, J. 

2 1 East, P. C. 353. 

3 Supra, §§ 102, 108, 109, 110, 147, 148, 
149. To some of these classes may be 
referred the cases of Wright v. Littler, 3 



192 LAW OF EVIDENCE. [PABT H. 

§ 157. Grounds of admission. The persons wliose declarations 
are thus admitted are considered as standing in the same situa- 
tion as if they were sworn ; the danger of impending death being 
equivalent to the sanction of an oath. It follows, therefore, that 
where the declarant, if living, would have been incompetent to 
testify, by reason of infamy, or the like, his dying declarations 
are inadmissible. ^ And, as an oath derives the value of its sanc- 
tion from the religious sense of the party's accountability to his 
Maker, and the deep impression that he is soon to render to Him 
the final account, wherever it appears that the declarant was 
incapable of this religious sense of accountability, whether from 
infidelity, imbecility of mind, or tender age, the declarations are 
alike inadmissible. ^ On the other hand, as the testimony of an 
accomplice is admissible against his fellows, the dying declara- 
tions of a particeps criminis in an act which resulted in his own 
death are admissible-against one indicted for the same murder.^ 

§ 158. Must be made under a sense of impending death. It is 
essential to the admissibility of these declarations, and is a pre- 
liminary fact, to be proved by the party offering them in evidence, 
that they were made under a sense of impending death; but it is 
not necessary that they should be stated, at the time, to be sp 
made. It is enough, if it satisfactorily appears, in any mode, 
that they were made under that sanction ; whether it be directly 
proved by the express language of the declarant, or be inferred 
from his evident danger, or the opinions of the medical or other 
attendants, stated to him, or from his conduct, or other circum- 
stances of the case, all of which are resorted to, in order to ascer- 
tain the state of the declarant's mind.^ The length of time which 

Burr. 1244; Avesotiir. Ld. Kinnaird, 6 tion of law, contemporaneous; but so 

East, 1«8 ; and some Others. It was once much as related to the identity of the 

thought tl»:it the dying declarations of tlie perpetrators was rejected. See also 

subscribing witness to a forged instrument Regina i;. Hewett, 1 Car. & Marshm. 534. 

were admissible to impeach it ; but such [See State v. Shelton,2 Jones (N.C.), Law, 

evidence is now rejected, for the reasons 300 ; State v. Peace, 1 Id. 251 ; Oliver v. 

already stated. Supra, § 120. See Sto- State, 17 Ala. 687.] 

bart V. Drvden, 1 Mees. & W. 615, 627. i Rex v. Drummond, 1 Leach's Cr. 

In Regina'y. Mcgson et a!., C. & P. 418, Cas. 378. 

420i the prisoners were tried on indict- - Rex v. Pike, 3 C & P. 508; Reg. 

ments, — one for the murder of Ann Stew- v. Perkins, 9 C. & P. .305; 2 Mood. Cr. C. 

art, and the other for a rape upon her. 135 ; 2 Russell on Crimes, 688. 

In the former case, her declarations were ^ Tinckler's case, 1 East, P. C. 354 

rejected, because not made in extremis; [State y. Thomason, IJones (N. C), Law, 

and in the latter so much of them as 274; and see /w.s^, § 460]. 

showed that a dreadful outrage had been * Rex v. Woodcock, 2 Leach's Cr. Cas. 

perpetrated upon lier was received m part 567 ; John's case, 1 East, P. C. 357, 358; 

of the outrage it.self, being, in coutempla- Rex u. Bonner, 6 C. & P. 386; Rex o. 



CHAP. IX.] OF DYTN'G DECLARATIONS. 193 

elapsed between the declaration and the death of the declarant 
furnishes no rule for the admission or rejection of the evidence ; 
though, in the absence of better testimony, it may serve as one 
of the exponents of the deceased's belief, that his dissolution was 
or was not impending. It is the impression of almost immediate 
dissolution, and not the rapid succession of death, in point of fact, 
that renders the testimony admissible.^ Therefore, vvdiere it ap- 
pears that the deceased, at the time of the declaration, had any 
expectation or hope of recovery, however slight it may have been, 
and though death actually ensued in an hour afterwards, the dec- 
laration is inadmissible .2 On the other hand, a belief that he will 
not recover is not in itself sufficient, unless there be also the pros- 
pect of " almost immediate dissolution." ^ 

§ 159. Only as to what deceased might have testified to. The 
declarations of the deceased are admissible only to those tilings to 
which he would have been competent to testify if sworn in the cause. 
They must, therefore, in general, speak to facts only, and not to 
mere matters of opinion ; and must be confined to what is rele- 
vant to the issue. But the right to offer them in evidence is not 
restricted to the side of the prosecutor : they are equally admissi- 
ble in favor of the party charged with the death.* It is not neces- 
sary, however, that the examination of the deceased should be 
conducted after the manner of interrogating a witness in the 

Van Butchell, Id. 631 ; Eex v. Mosley, 1 [Oliver v. State, 17 Ala. 587 ; Johnson v. 

Moody's Or. Gas. 97 ; Rex v. Spilsbury, 7 State, Id. 618]. 

C. & P. 187, per Coleridge, J. ; Reg. v. 2 go ruled in Welborn's case, 1 East, 

Perkins, 2 Mood. Cr. Cas. 135 ; Mont- P. C. 858, 359 ; Rex v. Ciiristie, 2 Russ. 

gomery v. Tlie State, 11 Oliio, 424 ; Dunn on Crimes, 685 ; Rex v. Hayward, 6 C. & 

t>. The State, 2 Pike, 229; Commonwealth P. 157, 160; Rex i\ Croclcett, 4 C. & P. 

V. M'Pike, 8 Cush. 181 ; Reg. v. Mooney, 544 ; Rex v. Fagent, 7 C. & P. 238 

5 Cox, C. C. 318. [Com. v. Roberts, 108 Mass. 296]. 

' In Woodcock's case, 2 Leach's Cr. ^ Such was the language of Hulloek, 

Cas. 563, the declarations were made B., in Rex v. Van Butchell, 3 C. & P. 629, 

forty-eiglit hours before death ; in Tinck- 631. See ace. Woodcock's case, 2 Leach's 

ler's case, 1 East, P. C. 3-54, some of them Cr. Cas. 567, per Ld. C. B. Eyre ; Rex v. 

were made ten days before death ; and in Bonner, 6 C. & P. 386 ; Commonwealth v. 

Rex V. Mosley, 1 Mood. Cr. Cas. 97, they King, 2 Virg. Cas. 78 ; Commonwealth 

were made eleven days before death ; and v. Gibson, Id. Ill; Commonwealth i'. 

were all received. 'In this last instance, Vass, 3 Leigh, 786; The State v. Poll, 

it appeared that the surgeon did not think 1 Hawks, 442 ; Regina v. Perkins, 9 C. 

the case hopeless, and told the patient so; & P. 395; s. c. 2 Mood. Cr. Cas. 135; 

bnt that the patient thought otherwise. Rex v. Ashton, 2 Lewin's Cr. Cas. 147. 

Si!e also Regina v. Howell, 1 Denis. Cr. [A declaration made when the declarant 

Cas. 1 [contra, People i-. Robinson, 2 Par- hoped to recover, but read at his request 

ker, Cr. R. 235; People v. Knickerbocker, and assented to by him after he had lost 

1 Id. 302]. In Rex v. Bonner, 6 C. & P. all hope of recovery, is admissible. Reg. 

386, they were made three days before v. Steele, 12 Cox, C. C. 168.] 
death. And see Smith v. The State, 9 * Rex v. Scaife, 1 Mood. & Ro. 551 ; 

Humph. 9 ; Logan i-. The State, Id. 24 s. c. 2 Lewin's Cr. Cas. 150. ' 

vol... I. 13 



194 LAW OF EVIDENCE. [PART H. 

cause ; thougli any departure from this mode may affect the 
validity and credibility of the declarations. Therefore, it is no 
objection to their admissibility that they were made in answer to 
leading questions, or obtained by pressing and earnest solicita- 
tion.i But whatever the statement may be, it must be complete 
in itself ; for, if the declarations appear to have been intended by 
the dying man to be connected with and qualified by other state- 
ments, which he is prevented by any cause from making, they will 
not be received.^ 

§ 160. AdmissibUity question for the judge. The circumstances 
under which the declarations were made are to be sliown to the 
judge ; it being his province, and not that of the jury, to deter- 
mine whether they are admissible. In Woodcock's case, the whole 
subject seems to have been left to the jury, under the direction 
of the court, as a mixed question of law and fact ; but subse- 
quently it has always been held a question exclusively for the 
consideration of the court, being placed on the same ground with 
the preliminary proof of documents, and of the competency of 
witnesses, which is always addressed to the court.^ But, after the 
evidence is admitted, its credibility is entirely witliin the province 
of the jury, who, of course, are at liberty to weigh all the circum- 
stances under which the declarations were made, including those 
already proved to the judge, and to give the testimony only such 
credit as, upon the whole, they may think it deserves.* 

1 Rex V. Fagent, 7 C. & P. 2?,8 ; Com- 1 East, P. C. 360 ; John's case, Id. 358 ; 

monwealth v. Vass, 3 Leigh, 786 ; Rex Rex v. Van ButchcU, 8 C. & P. 629 ; Rex 

V. Reason el al., 1 Stra. 499 ; Rex v. Wood- v. Bonner, 6 C & P. 380 ; Rex v. Spils- 

cock, 2 Leach's Cr. Cas. 563 [Oliver v. bury, 7 C. & P. 187, 190; The State v. 

State, 17 Aha. 587]. Poll, 1 Hawks, 444; Commonwealth v. 

'■* 3 Leigh, 787. [A declaration com- Murray, 2 Ashm. 41 ; Commonwealth 
petent when made will not be rejected v. Williams, Id. 69 ; Hill's case, 2 Gratt. 
because of a revival of hope in the 594 ; McDaniel v. The State, 8 Sm. & M. 
dying person. State v. Tilghman, 11 401. Where the dying deponent declared 
Ired. (N. C) L. 513. By "complete in tliat the statement was " as nigli right as 
itself " is meant that the declarant's state- he couM recollect," it was held adini.ssi- 
ment of any given fact shall be all he ble. The State v. Ferguson, 2 Hill 
intended to say as to that fact. State y. (S. C), 619 (State v. Howard, 32 Vt. 
Patterson, 45 Vt. 308. Wliere the de- 3801. And the majority of the court held 
ceased being asked " who shot him," re- in State r. Cornish, 5 Harr. (Del.) 532, 
plied " the prisoner," the declaration is that if the State made out a case of ad- 
complete, and cannot be rejected because, missibility, the declarations would be re- 
from weakness and exhaustion, lie was ceivod, and the court could not hear 
unable to answer another question pro- evidence of the defence tiiat the declara- 

Sounded to liim immediately afterwards, tions were not made under a sense of ira- 

IcLean v. State, 16 Ala. 672.] pending death]. 

8 Said, per Ld. Ellenborough, in Rex * 2 Stark. Evid. 263 ; Phil. & Am. on 

V. Hucks, 1 Stark. 521, 523, to have Evid. 304 ; Ross i-. Gould, 6 Grcenl. 204 ; 

been so resolved by all the judges, in a Vass's case, 3 Leigh, 794. See also tlie 

case proposed to them. VVelborn's case, remarks of Mr. Evans, 2 Poth. on Oblig. 



CHAP. IX.] OF DYING DECLARATIONS. 195 

§ ICl. Declarations in writing. If the statement of the deceased 
was committed to writing and signed hy Jiim, at the time it was 
made, it has been held essential that the writing should be pro- 
duced, if existing ; and that neither a copy, nor parol evidence 
of the declarations, could be admitted to supply the omission. ^ 
But where the declarations had been repeated at different times, 
at one of which they were made under oath, and informally re- 
duced to writing by a witness, and at the others they were not, 
it was held that the latter might be proved by parol, if the other 
could not be produced.^ If the deposition of the deceased has 
been taken under any of the statutes on that subject, and is inad- 
missible, as such, for want of compliance with some of thfe legal 
formalities, it seems it may still be treated as a dying declaration, 
if made in extremis.^ 

§ 161 a. Substance only required. It has been held that the sub- 
stance of the declarations may be given in evidence, if the witness 
is not able to state the precise language used.* And we have 
already seen that it is no objection to their admissibility, that they 
were obtained in answer to questions asked by the by-standers, 
nor that the questions themselves were leading questions ; and 
that, if it appear that the declarations were intended by the dying 
person to be connected with and qualified by other statements, 
material to the completeness of the narrative, and that this was 
prevented by interruption or death, so that the narrative was left 
incomplete and partial, the evidence is inadmissible.^ 

§ 161 h. Declarations by signs. The testimony here spoken of 
may be given as well bg signs as by words. Thus, where one, 

256 (294), App. No. IG, who thinks that Chand. 172; People v. Glenn, 10 Cal. 82 ; 

the jury should be directed, previous to State v. Tuesday, 11 Iowa, 350; Collier 

considering the effect of the evidence, to v. State, 20 Ark. 36 ; so, although not 

determine : 1st, Whether the deceased signed, perhaps. State v. Patterson, 45 

was really in such circumstances, or used Vt. 308. But Taylor, Evidence, § 651, 

such expressions, from which the appre- expresses a doubt as to the soundness of 

hension in question was inferred; 2d, this rule. See also ante, § 90]. 
Whether the inference deduced from ^ j^gx v. Reason et al., 1 Sir. 499, 500. 

such circumstances or expressions is cor- ^ jjex v. Woodcock, 2 Leach, Cr. Cas. 

rect; 3d, Whether the deceased did 663; Rex j;. Callaghan, McNally's Evid. 

make the declarations alleged against the 385. 

accused ; and 4th, Whether those dec- * Montgomery v. The State, 11 Ohio, 

iarations are to be admitted, as sincere 424 ; Ward v. The State, 8 Blackf. 101. 

and accurate. Trant's case, McNally's And see infra, § 165. [The substance of 

Evid. 385. the declarations is suflBcient, and it may 

^ Rex V. Gay, 7 C & P. 230 ; Trowter's be given, if need be, by an interpreter, 

case, P. 8 Geo. I. B. R. 12 Vin. Abr. 118, Starkey v. People, 17 111. 17.] 
119; Leach V. Simpson e< a/., 1 Law & Eq. * Vass's case, 3 Leigh, 786; supra, 

68; 5 M. & W. 309 ; 7 Dowl. P. C. 13 ; § 159. 
B. c. 3 Jur. 654 [State v. Cameron, 2 



196 



LAW OF EVIDENCE. 



[pAUT n. 



being at the point of death and conscious of her situation, but 
unable to articulate by reason of the wounds she had received, 
was asked to say whether the prisoner was the person who had 
inflicted the wounds, and, if so, to squeeze the hand of the inter- 
rogator, and she thereupon squeezed his hand, it was held that 
this evidence was admissible and proper for the consideration of 
the jury.i 

§ 162. Appreciation of the weight of such declarations as evidence. 
Though these declarations, when deliberately made, under a sol- 
emn and religious sense of impending dissolution, and concerning 
circumstances, in respect of which the deceased was not likely to 
have been mistaken, are entitled to gi-eat weight, if precisely iden- 
tified, yet it is always to be recollected that the accused has not 
the po'wer of cross-examination^ — a power quite as essential to the 
eliciting of all the truth, as the obligation of an oath can be ; and 
that where the witness has not a deep and strong sense of account- 
ability to Ms Maker, and an enlightened conscience, the passion 
of anger and feelings of revenge may, as they have not unfre- 
quently been found to do, affect the truth and accuracy of his 
statements, especially as the salutary and restraining fear of pun- 
ishment for perjury is in such cases withdrawn. And it is further 
to be considered, that the particulars of the violence to which 
the deceased has spoken were in general likely to have occurred 



1 Commonwealth v. Casev, 6 Monthly 
Law Kep. p. 203 [11 Cush. 417, 421. 
The entire ophiion of the court, by Shaw, 
C. J., is as follows : " We appreciate the 
importance of the question offered for our 
decision. Where a person has been in- 
jured in sncli a way, that his testimony 
cannot be had in the customary way, the 
usual and ordinary rules of evidence must, 
from tiie necessity of the case, be de- 
parted from. The point first to be estab- 
lished is, that the person whose dying 
declarations are souglU to be admitted 
was conscious tiiat he was near his end at 
the time of making them ; for this is sup- 
posed to create a solemnity equivalent to 
an oath. If this fact be satisfactorily es- 
tablislied, and if the declarations are made 
freely and voluntarily, ami without coer- 
cion, tliey may be admitted as competent 
evidence to go to the jury. But, after 
they are admitted, the facts of the declara- 
tions and their credibility are still for tiie 
judgment of the jury. 

" In regard to the matter before the 
court, and the a<lmissibility of the signs 
bj Mrs. Taylor, in reply to the questions 



put to her, it is to be observed that all 
words are signs ; some are made by the 
mouth, and others by the hands. There 
was a civil case tried in Berkshire county, 
where a suit was brought against a rail- 
road company, and the question was, 
whether a female who was run over sur- 
vived the accident for any lengtli of time. 
She was unable to speak, but was asked, 
if she had consciousness, to press their 
hands, and the testimony was admitted. 
If the injured party had but the action of 
a single finger, and with that finger 
])ointed to the words " yes " and " no," in 
answer to questions, in such a manner as 
to render it probable that she understood, 
and was at the same time conscious that 
she could not recover, then it is admissi- 
ble evidence. It is, thereforL', the opinion 
of the court, that the circumstances under 
which the responses were given by Mrs. 
Taylor to the questions which were put 
her warrant that the evidence shall be 
admitted, but it is for the jury to judge 
of its credibility, and of the effect which 
shall be given to it "J. 



CHAP. IX.] 



OF DYING DECLARATIONS. 



197 



under circumstances of confusion and surprise, calculated to pre- 
vent their being accurately observed, and leading both to mistakes 
as to the identity of persons, and to the omission of facts essen- 
tially important to the completeness and truth of the narrative.^ 



1 Pliil. & Am. on Evid. 305, 806 ; 1 
Phil. Evid. 292 ; 2 Johns. 35, 86, per Liv- 
ingston, J. See also Mr. Evans's observa- 
tions on the great caution to be observed 
in the use of tliis kind of evidence, in 2 
Potli. Obi. 255 (203); 2 Stark. Evid. 263. 
See also Hex i-. Ashton,2 Lewin's Or. Gas. 
147, per AUlerson, B. [Such testimony- 
may be impeached by showing that the 
declarant did not believe in a future state 
of rewards and punishments. Goodall v. 



State, 1 Oreg. 333. The dying declara- 
tions of a third person made under such 
circumstances as to make them a part of 
the res gestae, were admitted in Hex v. 
Baker, 2 M. & R. 53. See also State v. 
Terrell, 12 Rich. (S. C.) 321. But they 
must be strictly part of the res gesfce to 
render them admissible. Brown v. Com- 
monwealth, 73 Penn. St. 321. See also 
Wagner's case, 61 Maine, 178.] 



198 LAW OF EVIDENCE, [PAET H. 



CHAPTER X. 

OP THE TESTIMONY OF WITNESSES SUBSEQUENTLY DEAD, 
ABSENT, OR DISQUALIFIED. 

§ 163. Testimony of deceased witnesses. Ill the fifth class of 
exceptions to the rule rejecting hearsay evidence may be included 
the testimony of deceased witnesses, given in a former action, be- 
tween the same parties ; though this might, perhaps, with equal 
propriety, be considered under the rule itself. This testimony 
may have been given either orally in court, or in written depo- 
sitions taken out of court. The latter will be more particularly 
considered hereafter, among the instruments of evidence. But 
at present we shall state some principles applicable to the testi- 
mony, however given. The chief reasons for the exclusion of 
hearsay evidence are the want of the sanction of an oath, and of 
any opportunity to cross-examine the witness. But where the 
testimony was given under oath, in a judicial proceeding, in which 
the adverse litigant was a party, and where he had the power to 
cross-examine, and was legally called upon so to do, the great and 
ordinary test of truth being no longer wanting, the testimony so 
given is admitted, after the decease of the witness, in any subse- 
quent suit between the same parties.^ It is also received, if the 
witness, though not dead, is out of the jurisdiction, or cannot be 
found after diligent search, or is insane, or sick, and unable to 
testify, or has been summoned, but appears to have been kept 
away by the adverse party .^ But testimony thus offered is open 

1 Bull. N. P. 239, 242 ; Mnyor of Don- tingency except the death of the witness, 
caster v. Day, 8 Taunt. 262 ; Glass v. there is some discrepancy amontr the 
Beach, 6 Vt. 172; Lightner v. Wike, 4 American authorities. It has been re- 
S. & K. 203. fused wliere the witness had suh.soquently 

2 Bull. N. P. 2-39, 243 ; 1 Stark. Evid. become interested, but was living and 
264; 12 Vin. Abr. 107, A. b. 31 ; Godb. within reach, Chess v. Chess, 17 S. & R. 
326; Rex y. Eriswcll, 3 T. R. 707, 721, 409; Irwin v. Reed,4 Yeates, 512; where 
per Ld. Kenyon [Long v. Davis, 18 Ala. he was not to be found within the juris- 
801; Covanliovan v. Hart, 21 Pcnn. (9 diction, but was reported to have gone to 
Harris), 495]. As to the effect of interest an adjoining State, Wilber v. Seldcn, 6 
Bubscqucntly acquired, see infra, § 167. Cowen, 162; where, since the former 
Upon the question whether this kind of trial, he had become incompetent by being 
evidence is admissible in any other con- convicted of an infamous crime, L« 



CHAP. X.] OF WITNESSES SUBSEQUENTLY DISQUALEFIED. 199 

to all the objections which might be taken if the witness were 
personally present.^ And if the witness gave a written deposi- 
tion in the caiise, but afterwards testified orally in court, parol 
evidence may be given of what he testified vivd voce, notwith- 
standing the existence of the deposition. ^ 

§ 164. Restrictions. The admissibility of this evidence seems 
to turn rather on the right to cross-examine than upon the precise 
nominal identity of all the parties. Therefore, where the witness 
testified in a suit, in which A and several others were plaintiffs, 
against B alone, his testimony was held admissible, after his death, 
in a subsequent suit, relating to the same matter, brought by B 
against A alone .^ And, though the two trials were not between 



Baron v. Crombie, 14 Mass. 234 ; where, 
though present, he had forgotten the facts 
to which he had formerly testified, Dray- 
ton V. Wells, 1 Nott & McCord, 409 ; and 
where he has proved to have left the State, 
after being summoned to attend at the 
trial, Finn's case, 5 Rand. 701. In this 
last case it was held, that this sort of testi- 
mony was not admissible in any criminal 
case whatever. [See also Brogy v. Com- 
monwealth, 10 Gratt. 722.] In the cases 
of Le Baron v. Crombie, VVilber v. Sel- 
den, and also in Crary v. Sprague, 12 
Wend. 41, it was said that such testimony 
was not admissible in any case, except 
where the witness was shown to be dead : 
but this point was not in either of those 
cases directly in judgment; and in some 
of them it does not appear to have been 
fully considered. [See also Weeks v. 
Lowerre, 8 Barb. 630.] On the other 
hand, in Drayton v. Wells, it was held by 
Cheves, J., to be admissible in four cases : 
1st, where the witness is dead ; 2d, in- 
sane ; 3d, beyond seas ; and 4th, where 
he has been kept away by contrivance of 
the other party. See also Moore v. Pear- 
son, 6 Watts '& Serg. 51. In Magill v. 
Kauffman, 4 S. & R. 317, and in Carpen- 
ter V. Groff, 5 S. & R. 1G2, it was admitted 
on proof that the witness had removed 
from Pennsylvania to Ohio ; it was also 
admitted, wliere the witness was unable 
to testify, by reason of sickness, in Miller 
V. Russell, 7 Martin, n. s. 2G6; and even 
where he, being a sheriff, was absent on 
official duty. Noble v. Martin, 7 Martin, 
N. s. 282. [If the illness be apparently 
temporary, the better practice seems to 
be to postpone the trial. Harrison v. 
Blades, 3 Campb. 458. So if the insanity 
is not hopeless. Taylor, Ev. §§ 444, 445 ; 
State V. Carney, Sup. Jud. Ct. (Maine) 
1846, 9 Law Reporter, 408. But if it 



appears that the witness was not fully 
examined at the former trial, his testi- 
mony cannot be given in evidence. Noble 
V. McCUntock, 6 Watts & Serg. 58. If 
the witness is gone, no one knows whither, 
and his place of abode cannot be ascer- 
tained by diligent inquiry, the case can 
hardly be distinguished in principle from 
that of his death ; and it would seem 
that his former testimony ought to be 
admitted. If he is merely out of the 
jurisdiction, but the place is known, and 
his testimony can be taken under a com- 
mission, It is a proper case for the judge 
to decide, in his discretion, and upon all 
the circumstances, whether the purposes 
of justice will be best served by issuing 
such commission, or by admitting the 
proof of what he formerly testified. The 
same rule applies to the case of an inter- 
preter of a witness. Shearer i;. Harber, 
36 Ind. 536.] 

1 Wright V. Tatham, 2 Ad. & El. 3, 21. 
Thus, where the witness at the former 
trial was called by the defendant, but was 
interested on the side of tiie plaintiff, and 
the latter, at the second trial, offers to 
prove his former testimony, the defendant 
may object to the competency of the evi- 
dence, on the ground of interest. Crary 
V. Sprague, 12 Wend. 41. 

2 Tod V. E. of Winchelsea, 3 C. & P. 
387 

3 Wright V. Tatham, 1 Ad. & El. 3. 
But see Matthews v. Colburn, 1 Strob. 258. 
[So it is admissible in a subsequent action, 
in which the same matter is in issue, be- 
tween persons who were parties to the 
former action, although other persons, not 
now before the court, were also parties to 
the former action. Philadelphia, W.&B. 
R. R. Co. V. Howard, 13 How. (U. S.) 307. 
But where, in a suit for land against two 
persons jointly, certain facts were ad- 



200 



LAW or EVIDENCE. 



[PAET n. 



the parties, yet if the second trial is between those who represent 
the parties to the first, by privity in blood, in law, or in estate, the 
evidence is admissible. And if, in a dispute respecting lands, 
any fact comes directly in issue, the testimony given to that fact 
is admissible to prove the same point or fact in another action 
between the same parties or their privies, though the last suit be 
for other lands.^ The principle on which, chiefly, this evidence is 
admitted, namely, the right of cross-examination, requires that its 
admission be carefully restricted to the extent of that right ; and 
that where the witness incidentally stated matter, as to which the 
party was not permitted by the law of trials to cross-examine 
him, his statement as to that matter ought not afterwards to be 
received in evidence against such party. Where, therefore, the 
point in issue in both actions was not the same, the issue in the 
former action having been upon a common or free fishery, and, in 
the latter, it being upon a several fishery, evidence of what a wit- 
ness, since deceased, swore upon the former trial, was held inad- 
missible. ^ 

§ 165. Precise words not necessary. It was formerly held, that 
the person called to prove what a deceased witness testified on a 
former trial must be required to repeat his precise ivords, and that 
testimony merely to the effect of them was inadmissible.^ But. 



mitted and agreed on by all the parties, 
in a subsequent suit for the same land 
between the same defendants, tliis ad- 
mission and agreement, thougli in writing, 
is not evidence. Frye v. Gragg, 35 Maine, 
29.1 

1 Outram v. Morewood, 3 East, 346, 
354, 355, per Ld. Ellenborough ; Peake's 
Evid. (3d ed.) p. 37; Hull. N. P. 232; 
Doe V. Derby, 1 Ad. & El. 783; Doe 
V. Foster, Id. 791, n. ; Lewis v. Clerges, 
3 Bac. Abr. G14; Shelton v. Barbour, 
2 Wash. G4 ; Kusliford v. Countess of 
Pembroke, Hard. 472; Jackson v. Law- 
son, 15 Johns. 544; Jackson v. Bailey, 2 
Johns. 17 ; Powell v. Waters, 17 Johns. 
176. See also Ei)hraims v. Murdoch, 7 
Blackf. 10; Hnrpcri'. Burrow, G Ired. 30; 
Clealand v. Iluev, 18 Ala. 343. 

2 Meivin v. Whiting, 7 Pick. 79. See 
also Jackson v. Winchester, 4 Dall. 20G ; 
Ephraims r. Murdoch, 7 Blackf. 10. 
[Where tiicre was a preliminary examina- 
tion before a magistrate of a defendant 
charged witli a crime, and a witness, since 
deceased, there testified for tlie govern- 
ment and was cross-examined by defend- 
ant's counsel, and subsequently an in- 



dictment was found, it was held, on the 
trial of the indictment, that tlie evidence 
of- what tlie witness testified to at the 
preliminary examination was admissible. 
United States i'. Macomb, 5 McLean, 28G ; 
Davis r. State, 17 Ala. 354 ; Kendrick r. 
State, 10 Humpli. 479. But see Oliver 
V. State, G Miss. 14 ; State ;•. McLoud, 1 
Hawks, (N. C.) 344. Such testimony 
before a coroner is inadmissible. State 
r. Campbell, 1 Ricli. (S. C.) 124, unless 
the witness be away by procurement of 
the accused. Williams v. State, 19 Geo. 
402. The testimony given before arbi- 
trators, by a witness since deceased, is 
admissible in evidence in a subsequent 
suit between the same parties on the 
same subject-matter, iilthougli the award 
has since l>een set aside, ])rovi(U'd the 
submission was good, and the arbitrators 
had jurisdiction. McAdams i: Stilwell, 
13 Penn. St. 90; Bailey v. Woods, 17 
N. II. 365 ; contra, Jessup v. Cook, 6 
N. J. Law, 434.] 

3 4 T. K. 290, said, per Ld. Kenyon, to 
liave been so " agreed on all hands," upon 
an offer to prove what Ld. Palmerston liad 
testified. So held, also, by Wasliingtou, 



CHAP. X.J OF WITNESSES SUBSEQUENTLY DISQUALIFIED. 201 

this strictness is not now insisted upon, in proof of the crime of 
perjury ; ^ and it has been well remarked, that to insist upon it 



J., in United States i'. Wood, 3 Wash. 
440; 1 Phil. Evid. 200 [215], 3d ed. ; 
Foster v. Shaw, 7 Serg. & R. 163, per 
Duncan, J. ; Wilber v. Seldon, 6 Co wen, 
165; Epiiraims v. Murdoch, 7 Blackf. 10. 
The same rule is applied to the proof of 
dying declarations. Montgomery v. Uhio, 
11 Ohio, 421. In New Jersey it has 
been held, that if a witness testifies that 
lie has a distinct recollection. Independent 
of his notes, of the fact that the deceased 
was sworn as a witness at the former trial, 
of what he was produced to prove, and of 
the substance of what he then stated, he 
may rely on his notes for the language, if 
he believes them to be correct. Sloan v. 
Somers, 1 Spencer, 66. In Massachusetts, 
in The Commonwealth v. Kichards, 18 
Pick. 434, the witnesses did not state 
the precise words used by the deceased 
witness, but only the substance of them, 
from recollection, aided by notes taken at 
the time ; and one of the witnesses testi- 
fied tliat lie was confident that he stated 
substantives and verbs correctly, but was 
not certain as to the prepositions and con- 
junctions. Yet the court held this insuf- 
ficient, and required that the testimony 
of the deceased witness be stated in his 
own language, ipsissimis verbis. The point 
was afterwards raised in Warren v. Nich- 
ols, 6 Met. 261 ; wnere the witness stated 
that he could give the substance of the 
testimony of the deceased witness, but 
not the precise language ; and the court 
held it insuflicient ; Hubbard, J., dissenti- 
ente. The rule, however, as laid down by 
the court in the latter case, seems to 
recognize a distinction between giving the 
substance of the deceased witness's testi- 
mony, and the substance of the language ; 
and to require only that his language be 
stated substantially, and in all material 
particulars, and not ipsissimis verbis. The 
learned chief justice stated the doctrine 
as follows : " The rule upon which evi- 
dence may be given of what a deceased 
witness testified on a former trial between 
the same parties, in a case where the 
same question was in issue, seems now 
well established in this commonwealth by 
authorities. It was fully considered in 
the case of Commonwealth v. Richards, 
18 Pick. 434. The principle on which 
this rule rests was accurately stated, the 
cases in support of it were referred to, 
and with the decision of which we see no 



cause to be dissatisfied. The general rule 
is, that one person cannot be heard to 
testify as to what another person has de- 
clared, in relation to a fact within his 
knowledge, and bearing ujion the issue. 
It is the familiar rule which excludes 
hearsay. The reasons are obvious, and 
thej'^ are two: first, because the aver- 
ment of fact does not come to the jury 
sanctioned by the oath of tiie party on 
whose knowledge it is supposed to rest ; 
and secondly, because the party upon 
whose interests it is brought to bear has 
no opportunit)' to cross-examine him on 
whose supposed knowledge and veracity 
the truth of the fact depends. Now the 
rule, which admits evidence of what 
another said on a former trial, must effec- 
tually exclude both of these reasons. It 
must have been testunonij ; that is, the 
affirmation of some matter of fact under 
oath ; it must have been in a suit between 
the same parties in interest, so as to make 
it sure that the party, against whom it is 
now offered, had an opportunity to cross- 
examine ; and it must have been upon the 
same subject-matter, to show that his 
attention was drawn to points now deemed 
important. It must be the same testi- 
mony which the former witness gave, be- 
cause it comes to the jury under the 
sanction of his oath, and the jury are to 
weigh the testimony and judge of it, as 
he gave it. Tlie witness, therefore, must 
be able to state the language in which the 
testimony was given, substantia!/ y and in 
all material particulars , because that is the 
vehicle by which the testimony of the 
witness is transmitted, of wliich the jury 
are to judge. If it were otherwise, the 
statement of the witness, which is otTered, 
would not be of the testimony of the 
former witness ; that is, of the ideas con- 
veyed by the former witness, in the lan- 
guage in which he embodied them ; but it 
would be a statement of the present wit- 
ness's understanding and comprehension 
of those ideas, expressed in language of 
his own. Those ideas may liave been mis- 
understood, modified, perverted, or col- 
ored, by passing through the mind of tiie 
witness, by his knowledge or ignorance of 
the subject, or the language in which tiie 
testimony was given, or by his own preju- 
dices, predilections, or habits of thought 
or reasoning. To illustrate this distinc- 
tion, as we understand it to be fixed by 



1 Rex V. Rowley, 1 Mood. Cr. Cas. 111. 



202 



LAW OF EVIDENCE. 



[part n. 



in other cases goes in effect to exclude this sort of evidence alto- 
gether, or to admit it only where, in most cases, the particularity 
and minuteness of the witness's narrative, and the exactness with 
which he undertakes to repeat every word of the deceased's testi- 
mony, ought to excite just doubts of his own honesty, and of the 
truth of his evidence. It seems, therefore, to be generally con- 
sidered sufficient, if the witness is able to state the substance of 
what was sworn on the former trial.^ But he must state, in sub- 
stance, the whole of what was said on the particular subject which 
he is called to prove. If he can state only what was said on that 



the cases : if a witness, remarkable for 
his knowledge of law, and his intelligence 
on all other subjects, of great quickness 
of apprehension and power of discrimina- 
tion, should declare that lie could give the 
substance and effect of a former witness's 
testimony, but could not recollect his lan- 
guage, we suppose he would be excluded 
by the rule. But if one of those remark- 
able men sliould happen to have been 
present, of great stolidity of mind upon 
most subjects, but of extraordinary te- 
nacity of memory for language, and who 
would say that he recollected and could 
repeat all the words uttered by the wit- 
ness ; although it should be very manifest 
that he himself did not understand them, 
yet his testimony would be admissible. 
The witness called to prove former testi- 
mony must be able to satisfy one other 
condition; namely, that he is able to state 
all that the witness testified on the former 
trial, as well upon the direct as the cross 
examination. The reason is obvious. One 
part of his statement may be qualified, 
softened, or colored by another. And it 
would be of no avail to the party against 
whom the witness is called to state the 
testimony of tlie former witness, that he 
has had the right and opportunity to cross- 
examine tliat former witness, with a view 
of diminishing the weight or impairing 
the force of that testimony against him, 
if the whole and entire result of that cross- 
examination does not accompany the 
testimony. It may, porliajjs, be said, that, 
with these restrictions, the rule is of little 
value. It is no douht true, that, in most 
cases of complicated and extended testi- 
mony, the lo.ss of evidence, liy the decease 
of a witness, caimot be avoided. But the 
^ame result follows, in most cases, from 
the decease of a witness whose testimony 
has not been preserved in some of the 
modes provided by law. But there are 
some cases in which the rule can be use- 
fully applied, as in case of testimony era- 



braced in a few words, — such as proof of 
demand or notice, on notes or bills, — 
cases in which large amounts are often 
involved. If it can be used in a few 
cases, consistently with the true and sound 
principles of the law of evidence, tliere is 
no reason for rejecting it altogether. At 
the same time, care should be taken so to 
apply and restrain it, that it may not, 
under a plea of necessity, and in order to 
avoid hard cases, be so used as to violate 
those principles. It is to be recollected, 
that it is an exception to the general rule 
of evidence, supposed to be extremely 
important and necessary; and unless a 
case is brought fully within the reasons of 
sucli exception, tlie general rule must pre- 
vail." See 6 Met. 264-2o6. See also 
Marsh v. Jones, 6 Washb. 378. 

1 See Cornell v. Green, 10 Serg. & R. 
14, 10, where this point is briefly but 
jJOwerfuUy discussed by Mr. Justice Gib- 
son. See also Miles v. O'Hara, 4 Binn. 
108 ; Caton ?;. Lenox, 5 Randolph, ol, 36 ; 
Rex V. Rowley, 1 Mood. Cr. C. Ill; 
Chess V. Chess, 17 Serg. & R. 409, 411, 
412; Jackson i'. Bailey, 2 Johns. 17; 2 
Russ. on Crimes, 038 [683], (3d Am. ed.) ; 
Sloan V. Somers, 1 Spencer, 66 ; Gar- 
rett V. Johnson, 11 G. & J. 28; Canney's 
case, 9 Law Rep. 408; The State v. 
Hooker, 2 Washb. 0.58; Gildersleeve v. 
Caraway, 10 Ala. 260 ; Gould v. Craw- 
ford, 2 Barr, 8!» ; Wagers v. Dickey, 17 
Ohio, 439 [United States v. Macomb, 
5 McLean, 280; Emery v. Fowler, 39 
Maine, 320; Young v. Dearborn. 2 Fos- 
ter, 372 ; Williams v. Willard, 23 Vt. 309; 
Van Buren v. Cockburn, 14 Barb. 118; 
Jones V. Wood, 16 Penn. St. 25; 
Biggins V. Brown, 12 Geo. 271 ; Walker 
I'. Walker, 14 Id. 242 ; Davis v. State, 
17 Ala. 354 ; Clealand v. Huey, 18 Id. 
343; Kendrick v. State, 10 Humph. 479 ; 
Johnson v. Powers, 40 Vt. Oil; Brown 
V. Com., 73 Pa. St. 321 ; supra, § 161 -i|. 



CHAP. X.] OF WITNESSES SUBSEQUENTLY DISQUALIFIED. 203 



subject by the deceased, on his examination in chief, without also 
giving the substance of what he said upon it in his cross-examina- 
tion, it is inadmissible.^ 

§ 166. Mode of proof. What the deceased witness testified may- 
be proved by any person who will swear from his own memory ; 
or by notes taken by any person who will swear to their accu- 
racy; 2 or, perhaps, from the necessity of the case, by the judge^s 
own notes, where both actions are tried before the same judge ; 
for, in such case, it seems the judge, from his position, as well as 
from other considerations, cannot be a witness.^ But, except in 
this case of necessity, if it be admitted as such, the better opinion 
is, that the judge's notes are not legal evidence of what a witness 
testified before him ; for they are no part of the record, nor is it 
his official duty to take them, nor have they the sanction of his 
oath to their accuracy or completeness.* But in chancery, when 



1 Wolf V. Wyeth, 11 Serg. & R. 149 ; 
Gildersleeve v. Caraway, 10 Ala. 260 
[Woods V. Keyes, 14 Allen (Mass.), 236; 
Black V. Woodron, 39 Md. 194]. 

2 Mayor of Doncaster v. Day, 3 Taunt. 
267 ; Chess v. Chess, 17 Serg. & R. 409. 
The witness, as has been stated in a pre- 
ceding note, must be able to testify, from 
his recollection alone, that deceased was 
sworn as a witness, the matter or thing 
which he was called to prove, and the 
substance of what he stated ; after which 
his notes may be admitted. Sloan v. 
Somers, 1 Spencer (N. J.), 66; supra, 
§ 165, n. (2) [Rhine v. Robinson, 27 Pa. 
St. 30; Clark v. Vorce, 15 Wend. (N. Y.) 
193; Jones v. Ward, 3 Jones (N. C), L. 
24]. 

3 Glassford on Evid. 602; Tait on 
Evid. 432 ; Regina v. Garard, 8 C. & P. 
695; infra, § 249. [This proposition is 
very properly stated, doubtfully. Huff 
V. Bennett, 4 Sandf. (N. Y.) 120; SchoU 
V. Miller, 5 Whart. (Pa.) 156, and post, 
§ 168, n.] 

* Miles V. O'Hara, 4 Binn. 108 ; Foster 
V. Shaw, 7 Serg. & R. 156; Ex parte 
Learmouth, 6 Madd. 113 ; Reg. v. Plum- 
mer, 8 Jur. 922, per Gurney, B. ; Liv- 
ingston I'. Cox, 8 Watts & Serg. 61. 
Courts expressly disclaim any power to 
compel the production of a judge's notes. 
Scougull V. Campbell, 1 Chitty, 283; 
Graham v. Bowham, Id. 284, n. And 
if an application is made to amend a ver- 
dict by the judge's notes, it can be made 
only to the judge himself before whom 
the trial was had. Id., 2 Tidd's Pr. 770, 
r/3S. Where a party, on a new trial being 



granted, procured, at great expense, copies 
of a short-hand writer's notes of the evi- 
dence given at the former trial, for the 
amount of which he claimed allowance in 
the final taxation of costs ; the claim was 
disallowed, except for so much as would 
have been the expense of waiting on the 
judge, or his clerk, for a copy of his notes ; 
on the ground that the latter would have 
sufficed. Crease v. Barrett, 1 Tyrw. & 
Grang. 112. But this decision is not con- 
ceived to affect the question, whether the 
judge's notes would liave been admissible 
before another judge, if objected to. In 
Regina v. Bird, 5 Cox, C. C. 11, 2 Eng. 
Law & Eq. 444, the notes of the judge, 
before whom a former indictment had 
been tried, were admitted without objec- 
tion, for the purpose of showing what beat- 
ings were proved at that trial, in order to 
support the plea of autrefois acquit. In 
New Brunswick, a judge's notes have been 
held admissible, though objected to, on 
the ground that they were taken under 
the sanction of an oath, and that such has 
been the practice. Doe v. Murray, 1 Al- 
len, 216. But in a recent case in England, 
on a trial for perjury, the notes of the 
judge, before whom the false evidence 
was given, being offered in proof of that 
part of the case, Talfourd, J., refused to 
admit them ; observing, that " a judge's 
notes stood in no other position than any- 
body else's notes. They could only be 
used to refresh the memory of the party 
taking them. It was no doubt unusual to 
produce the judge as a witness, and would 
be highly inconvenient to do so ; bat that 
did not make his notes evidence." Regina 



204 LAW OF EVIDENCE. [PART II. 

a new trial is ordered of an issue sent out of chancery to a court 
of common law, and it is suggested that some of the witnesses in 
the former trial are of advanced age, an order may be made, that, 
in the event of their death or inability to attend, their testimony 
may be read from the judge's notes.^ 

§ 167. "When interest is subsequently acquired. The effect of an 
interest subsequently acquired by the witness, as laying a founda- 
tion for the admission of proof of his former testimony, remains 
to be considered. It is in general true, that if a iDerson who has 
knowledge of any fact, but is under no obligation to become a 
witness to testify to it, should afterwards become interested in 
the subject-matter in which that fact is involved, and his interest 
should be on the side of the party calling him, he would not be a 
competent witness until the interest is removed. If it is releasa- 
ble by the party, he must release it. If not, the objection remains : 
for neither is the witness nor a third person compellable to give 
a release ; though the witness may be compelled to receive one. 
And the rule is the same in regard to a subscribing witness, if 
his interest was created by the act of the party calling him. 
Thus, if the charterer of a ship should afterwards communicate 
to the subscribing witness of the charter-party an interest in the 
adventure, he cannot call the witness to prove the execution of 
the charter-party : nor will proof of his handwriting be received ; 
for it was the party's own act to destroy the evidence.^ It is, 
however, laid down, that a witness cannot, by the subsequent 
voluntary creation of an interest, without the concurrence or 
assent of the party, deprive him of tlie benefit of his testimony .^ 
But this rule admits of a qualification, turning upon the manner 
in which the interest was acquired. If it were acquired wantonly, 
as by a wager, or fraudulently, for the purpose of taking off his 
testimony, of which the participation of the adverse party would 
generally be proof, it would not disqualify him. 

But "the pendency of a suit cannot prevent third persons from 

V. Cliild.SCox.C. C.197,203. [Evidence Stew. & Port. 227, 237 ; Schall d. Miller, 6 

at former trial cannot be proved by a bill Whart. 156. 

of exceptions stating it. Kirk u. Mowry, » i Stark. Evid. 118; Barlew v. Vow- 

24 Ohio St. 581.] ell, Skin. 580; Georjje v. Pierce, cited by 

1 Harprave r. Ilargrave, 19 Jnr. 957. Puller, J., in 3 T. R. 87 ; Pex v. Fox, 1 

2 Ilovill V. Stephenson, 5 Bing. 493; Str. 652; Long v. Bailiie, 4 Serg. & R. 
Hamilton v. Williams. 1 Ilayw. 1.39; 222; Burgess t'. Lane, 8 Greenl. 165; 
Johnson t;. Knight, 1 N. C. Law, 93 ; Jackson i;. Rumsey, 3 Johns. Cas. 234, 
1 Murph. 293; Bennett v. Robinson, 3 237; infra, § 418. 



CHAP. X.] OF WITNESSES SUBSEQUENTLY DISQUALIFIED. 205 

transacting business, hona fide^ with one of the parties ; and, if an 
interest in the event of the suit is thereby acquired, the common 
consequence of law must follow, — that the person so interested 
cannot be examined as a witness for that party, from whose suc- 
cess he will necessarily derive an advantage." ^ Therefore, where, 
in an action against one of several underwriters on a policy of 
insurance, it appeared that a subsequent underwriter had paid, 
upon the plaintiff's promise to refund the money, if the defendant 
in the suit should prevail ; it was held, that he was not a compe- 
tent witness for the defendant to prove a fraudulent concealment 
of facts by the plaintiff, it being merely a payment, by anticipa- 
tion, of his own debt, in good faith, upon a reasonable condition 
of repayment.^ And as the interest which one party acquires in 
the testimony of another is liable to the contingency of being 
defeated by a subsequent interest of the witness in the subject- 
matter, created hona fide, in the usual and lawful course of busi- 
ness, the same principle would seem to apply to an interest arising 
by operation of law, upon the happening of an uncertain event, 
such as the death of an ancestor, or the like. 'But though the 
interest which a party thus acquires in the testimony of another 
is liable to be affected by the ordinary course of human affairs, 
and of natural events, the witness being under no obligation, on 
that account, either to change the course of his business, or to 
abstain from any ordinary and lawful act or employment ; yet it 
is a right of which neither the witness nor any other person can 
by voluntary act and design deprive him. Wherever, therefore, 
the subsequent interest of the witness has been created either 

1 3 Campb. 3Sl,perLcl. Ellenhorough. 2 Forrester v. Pigou, 3 Campb. 380; 
The case of Bent v. Baker, 3 T. R. 27, s. c. 1 M. & S.9; Phelps v. Riley, 6 Conn, 
seems to liave been determined on a simi- 266. In Burgess i;. Lane, 3 Greenl. 16-5, 
lar principle, as applied to the opposite the witness had voluntarily entered into 
state of facts ; the subsequent interest, an agreement with the defendant, against 
acquired by the broker, being regarded whom he had an action pending in an- 
as affected with bad faith, on the part of other court, that that action should abide 
the assured, who objected to his admis- the event of the other, in which he was 
sion. The distinction taken by Lord now called as a witness for the plaintiff ; 
EUenborough was before the Supreme and the court held, that it did not lie with 
Court of the United States in Winship the defendant, who was party to that 
V. The Bank of the United States, 5 agreement, to object to his admissibility. 
Peters, 529, 541, 542, 545, 546, 5-52, but But it is observable, that that agreement 
no decision was had upon the question, was not made in discharge of any real 
the court being equally divided. But or supposed obligation, as in Forrester v. 
the same doctrine was afterwards dis- Pigou ; but was on a new subject, was 
cussed and recognized, as " founded on uncalled for, and purely voluntary ; and 
the plainest reasons," in Eastman v. Win- therefore subjected the adverse party to 
Bhip, 14 Pick. 44; 10 Wend. 162, 164, ace. the imputation of bad faith in making it. 



206 LAW OF EVIDENCE. [PART H. 

wantonly, or in bad faith, it does not exclude him ; and doubt- 
less the participation of the adverse party in the creation of such 
interest would, if not explained by other cii'cumstances, be very 
strong prima facie evidence of bad faith ; as an act of the witness, 
uncalled for, and out of the ordinary course of business, would 
be regarded as wanton.^ 

§ 168. Previous deposition. If, in cases of disquahfying interest, 
the witness has previously given a deposition in the cause, the 
deposition may be read in chancery, as if he were since deceased, 
or insane, or otherwise incapacitated. It may also be read in the 
trial, at law, of an issue out of chancery. In other trials at law, 
no express authority has been found for reading the deposition ; 
and it has been said, that the course of practice is otherwise ; but 
no reason is given, and the analogies of the law are altogether in 
favor of admitting the evidence.^ And, as it is hardly possible to 
conceive a reason for the admission of prior testimony given in 
one form wliich does not apply to the same testimony given in 
any other form, it would seem clearly to result that where the 
witness is subsequently rendered incompetent by interest, law- 
fully acquired, in good faith, evidence may be given of what he 
formally testified orally, in the same manner as if he were dead ; 
and the same principle will lead us farther to conclude, that in 
all cases where the party has, without his own fault or concur- 
rence, irrecoverably lost the power of producing the witness 
again, whether from physical or legal causes, he may offer the 
secondary evidence of what he testified in the former trial. If 
the lips of the witness are sealed, it can make no difference in 
principle, whether it be by the finger of death, or the finger of 
the law. The interest of the witness, however, is no excuse for 
not producing him in court ; for perhaps the adverse party will 
waive any objection on that account. It is only when the objec- 
tion is taken and allowed, that a case is made for the introduc- 
tion of secondary evidence.^ 

1 Sec infra S 418, where the subject is sioiis in Pennsylvania. See also 1 Stark. 
.gain conskiLTo.l. E vid. 264. 265 ; 1 Smith's Chan. Pr 344 ; 

2 Tiiis is now the established practice Gosse v. Tracy, 1 P. W. 287 ; 8. c. J Vern. 
in chancery, Groslcy on Evid. 80(5, 307 ; 099 ; Andrews v. Palmer, 1 Ves. & B. 21; 
and in Chess v. Chess, 17 Serp. & R. 412, Luttrell i'. Reynell, 1 Mod. 284; Jones v. 
it was conceded hy Tod, J., that the rca- Jones, 1 Cox, 184 ; Union Bank v. 
son and principle of the rule applied with Knnpp, 3 Pick. 108, 100, per Putnam, J. ; 
equal force in trials at law; though it Wafer «. Hcmkcn. 9 Rob. 20.] jSee also 
was deemed in that case to have been Scammon v. Scammon, :V.i N. II. o2, o8.J 
settled otherwise, by the course of deci- * [Our author seems, in the preceding 



CHAP. X.] OF WITNESSES SUBSEQUENTLY DISQUALIFIED. 207 



sections, to have stated some points more 
loosely than is consistent with his usual 
accuracy. We see no more reason why 
the judge, presiding at a former trial, 
should be exempted from verifying his 
minutes, if required by oath and by 
cross-examination, than any other wit- 
ness. Our own minutes have always 
been used, in such cases, by consent; but 
we never supposed they possessed any 
legal verity. And we have never sup- 



posed the rule of admitting the testimony 
of a deceased witness, at a former trial, 
extended to all cases where the witness, 
for any cause, could not be produced. 
It will be found, we believe, that that 
rule applies to the deposition of a witness 
de bene esse, or in perpeluam, and not to his 
testimony upon former trials. Judge 
Redfield's addendum to this section in the 
twelfth edition.] 



208 LAW OF EVIDENCE. [PAKT 11. 



CHAPTER XI. 

OF ADanSSIONS. 

§ 169. Admissions and confessions. Under the head of excep- 
tions to the rule rejecting hearsay evidence, it has been usual to 
treat of admissions and confessions by the party, considering 
them as declarations against his interest, and therefore probably 
true. But in regard to many admissions, and especially those 
implied from conduct and assumed character, it cannot be sup- 
posed that the party, at the time of the principal declaration or 
act done, believed himself to be speaking or acting against his 
own interest; but often the contrary. Such evidence seems, 
therefore, more properly admissible as a snhstitute for the ordi- 
nary and legal proof, either in virtue of the direct consent and 
waiver of the party, as in the case of explicit and solemn admis- 
sions ; or on grounds of public policy and convenience, as in the 
case of those implied from assumed character, acquiescence, or 
conduct.^ It is in this light that confessions and admissions are 
regarded by the Roman law, as is stated by Mascardus. " lUud 
igitur in primis, nt hinc potissimum exordiar, non est ignoran- 
dum, quod etsi confessioni inter probationum species locum in 
prsesentia tribuerimus; cuncti tamen fere Dd. unanimes sunt 
arbitrati, ipsam potius esse ab onere probandi relevationem quam 
proprie probationem.^ Many admissions, however, being made 
by third persons, are receivable on mixed grounds ; partly as 
belonging to the res gestce, partly as made against the interest of 
the person making them, and partly because of some privity 

1 See supra, § 27. sumptio juris et de jure ; thus constituting 

2 I^Iascard.' i)e Probat. vol. i., Quajst. an exception to the conclusiveness of tins 
7 n 1 10 11; Menochius, De Praesump., class of presumptions. But to give a 
lib 1 Qujcs. 01, n. G; Alciatus, De Praj- confession this effect, certain things are 
Bump., I)ar3 2, n. 4. Tlie Roman law essential, which Mascardus cites out ot 
distiiiguisiies, with great clearness and Tancred: — 

precision, between confessions extra judi- „ ^^^^^^ gpontA, sciens, contra se, ubi jus fit; 

cium, and confessions mjndtcio; treating Uecnatura, favor, lis jusverepugnet.ethosUs." 
the former as of very Uttle and often of v^n- ik 40 

no weight unless corroborated, and tlie Mascard. uhi sup. n. 15; \ id. D^g. I'D- ^^ 

latter as generally, if not always, conclu- tit. 2, de Confessis; Cod. lib. i, tit. oJ; 

give even to the overthrow of the prae- Van Leeuwen's Comm., book v. c. 21. 



CHAP. XI.] OF AD:\nSSIONS. 209 

with liim against whom they are offered in evidence. The whole 
subject, therefore, properly falls under consideration in this con- 
nection. 

§ 170. Distinguished. In our law, the term admission is usually 
applied to civil transactions^ and to those matters of fact, in crimi- 
nal cases, which do not involve criminal intent ; the term confes- 
sion being generally restricted to achnoivledgments of guilt. We 
shall therefore treat them separately, beginning with admissions. 
The rules of evidence are in both cases the same. Thus, in the 
trial of Lord Melville, charged, among other things, with crimi- 
nal misapplication of moneys received from the exchequer, the 
admission of his agent and authorized receiver was held sufficient 
proof of the fact of his receiving the public money ; but not ad- 
missible to establish the charge of any criminal misapplication of 
it. The law was thus stated by Lord Chancellor Erskine : " This 
first step in the proof" (namely, the receipt of the money) 
" must advance by evidence applicable alike to civil as to crimi- 
nal cases ; for a fact must be established by the same evidence, 
whether it is to be followed by a criminal or civil consequence : 
but it is a totally different question, in the consideration of crimi- 
nal as distinguished from civil justice, how the noble person now 
on trial may be affected by the fact when so established. The 
receipt by the paymaster would in itself involve him civilly, but 
could by no possibility convict him of a crime." ^ 

§ 171. Parties to the record and privies. We shall first consider 
the person whose admissions may be received. And here the 
general doctrine is, that the declarations of a party to the record^ 
or of one identified in interest tvith him, are, as against such party, 
admissible in evidence.^ If they proceed from a stranger, and 

1 29 Howell's State Trials, col. 764. kind of evidence by which it is to be 

2 Spargo V. Brown, 9 B. & C. 935, per proved. See Smith v. Burnliam, 2 Sumn. 
Bayley, J. ; infra, §§ 180, 203. In tlie 612 ; Brandon v. Cabiness, 10 Ala. 156 ; 
court of chancery ,'in England, evidence is Story, Equity Plead. § 265a, and n. (1), 
not received of admissions or declarations where this subject is fully discussed, 
of the parties, which are not put in issue And in England, the rule has recently 
by thepleadings, and which there was not, been qualified, so far as to admit a writ- 
therefore, any opportunity of explaining ten admission by the defendant of his 
or disproving. Copcland v. Toulmin, 7 liability to the plaintiff, in the matter of 
Clark&Fin. 350,373; Austin y.Ciiambers, the pending suit. Malcolm v. Scott, 3 
6 Clark & Fin. 1 ; Atwood v. Small, Id. 234 Hare, 63 ; McMahon v. Burchell, 1 Coop. 
[Perry y. Simpson Mfg. Co., 40 Conn. 313.] Cas. temp. Cottenham, 475; 7 Law Rev, 
But in the United vStates this rule lias not 209. See the cases collected by Mr. 
been adopted ; and it is deemed sufficient if Cooper in his note appended to that case, 
the proposition to be established is stated It seems, that pleadings, whether in 
in the bill, without stating the particular equity or at common law, are not to be 

VOL. I. 14 



210 



LAW OF EVIDENCE. 



[PAET n. 



cannot be brought home to the party, they are inadmissible, 
unless upon some of the other grounds already considered.^ 
Thus, the admissions of a payee of a negotiable promissory note, 
not overdue when negotiated, cannot be received in an action by 
the indorsee against the maker, to impeach the consideration, 
there being no identity of interest between him and the plaintiif.^ 
§ 172. Parties jointly interested. This general rule, admitting 
the declarations of a party to the record in evidence, applies to 
all cases where the party has any interest in the suit, whether 
others are jouit parties on the same side with him or not, and 
howsoever the interest may appear, and whatever may be its 
relative amount.^ But where the party sues alone, and has no 
interest in the matter, his name being used, of necessity, by one 
to whom he has assigned all his interest in the subject of the suit, 
though it is agreed that he cannot be permitted, by his acts or 
admissions, to disparage the title of his innocent assignee or 
vendee, yet the books are not so clearly agreed in the mode of 
restraining him. That chancery will always protect the assignee, 
either by injunction or otherwise, is very certain ; and formerly 
this was the course uniformly pursued ; the admissions of a party 
to the record, at common law, being received against him in all 



treated as positive allegations of the 
truth of the facts therein stated, for all 
purposes ; but only as sta'tements of the 
case of the party, to be admitted or 
denied by the opposite side, and, if de- 
nied, to be proved, and ultimately to be 
submitted to judicial decision. Boileau 
V. Rutlin, 2 Exch. GOo. [See also post, 
vol. iii. § "276. Answers of a party to a 
suit to interrogatories tiled in the ordi- 
nary mode of practice arc competent 
evidence ngainst him of the facts stated 
therein, in anotlier suit, although the 
issues in tbe two suits be dilferent. Wil- 
liams V. Clionev, iJ (irav, '.^15; Jndd c. 
Gibbs, Id 53!). 'See Clnircli v. Slielton, 2 
Curtis. C. C. 271; State v. Littletield, 3 
K. I. 121.1 

1 Supra, §§ 128. 141, 147, 150. There 
must be some evidence of the identity of 
the person wlu).<e admissions are otYered 
in evidence with tlie jiarty in question. 
Thus, where the witness asked for the 
defendant by name, at his lodgings, and 
a person came to the door professing to 
be the one asked for ; the witness being 
imacquainted with the dofend;int's per- 
son then and since ; this was held sulli- 
cient to admit the conversation which 



then was had between the witness and 
this person, as being, prima fadr, the lan- 
guage of the defendant. Reynolds v. 
Staines, 2 C. & K. 745. [Admissions of a 
party may be proved, although they 
relate to a written instrument. Looniis 
V. Wadhani, 8 Gray, 550; Smith v. 
Palmer, Cush. (Mass.) 513. Aihnis- 
sions made by an infant are admissible 
in a suit brought against him after his 
arrival at his majority. O'Neill v. Read, 
7 Ir. Law, 434.] 

■^ Barough v. White, 4 B. & C. 325; 
Bristol V. Dan, 12 Wend. 142. 

3 Bauerman v. Hadenius, 7 T. R. G63; 
s. c. 2 Ksp. t)53. In this case the con- 
signees brouglit an action in the luime of 
the consignor, against the ship-mnster, for 
a dnmnge to the goods, occasioned by his 
negligence; and without sui)])osing some 
interest to remnin in the consignor, tho 
action could not be maintained. It was 
on this ground that Lawrence, J., placed 
the decision. See also Norden r. Wil- 
liamson, 1 Taunt. 878; jNlandeville v. 
Welch, 5 Wheat. 283, 280 ; Dan et al. v. 
Brown, 4 Cowen, 483, 4'J2 [Black v. 
Lamb, 1 Beasley, 108J. 



CHAP. XI.] OF ADMISSIONS. 211 

cases. But, in later times, the interests of an assignee, suing in 
the name of his assignor, have also, to a considerable extent, been 
protected, in the courts of common law, against the effect of any 
acts or admissions of the latter to his prejudice. A familiar ex- 
ample of this sort is that of a receij)t in full, given by the assignor, 
being nominal plaintiff, to the debtor, after the assignment ; 
which the assignee is permitted to impeach and avoid, in a suit 
at law, by sho^ving the previous assignment.^ 

§ 173. Nominal and real parties. But a distinction has been 
taken between such admissions as these wliich are given in evi- 
dence to the jury under the general issue, and are therefore 
open to explanation and controlling proof, and those in more 
solemn form, such as releases which are specially pleaded 
and operate by way of estoppel ; in which latter cases it has been 
held, that, if the release of the nominal plaintiff is pleaded in bar, 
the courts of law, sitting in bank, will administer equitable relief, 
by setting aside the plea, on motion ; but that, if issue is taken 
on the matter pleaded, such act or admission of the nominal 
plaintiff must be allowed its effect at law to the same extent as if 
he were the real plaintiff in the suit.^ The American courts, 
however, do not recognize this distinction ; but, where a release 
from the nominal plamtiff is pleaded in bar, a prior assignment 
of the cause of action, with notice thereof to the defendant, and 
an averment that the suit is prosecuted by the assignee for his 
own benefit, is held a good replication.^ Nor is the nominal 
plaintiff permitted by the entry of a retraxit, or in any other 
manner, injuriously to affect the rights of liis assignee in a suit at 
law.* 

1 Henderson et al. v. Wild, 2 Campb. Anon., 1 Salk. 260 ; Payne v. Rogers, 

561. Lord Ellenborough, in a previous Doug. 407; Skaife v. Jackson, 3 B. & C. 

case of tlie same kind, thought himself 421. 

not at liberty, sitting at Nisi Prius, to ^ Mandeville v. Welch, 5 Wheat. 277, 
overrule the defence. Alner v. George, 283; Andrews v. Beeker, 1 Johns. Cas. 
1 Campb. 39'2; Frear v. Evertson, 20 411; Raymond v. Squire, 11 Johns. 47; 
Johns. 142. See also Payne v. Rogers, Littlefield v. Story, 3 Johns. 42-5 ; Daw- 
Doug. 407 ; Winch v. Keeley, 1 T. R. son v. Coles, 16 Johns. 51 ; Kimball v. 
619; Cotkshott r. Bennett, 2 T. 11.763; Huntington, 10 Wend. 675; Owings v. 
Lane v. Chandler, 3 Smith, 77, 83; Skaife Low, 5 Gill & Johns. 134. 
r. Jackson, 3 B. & C. 421 ; Appleton v. * Welch v: Mandeville, 1 Wheat. 2.33. 
Boyd, 7 Mass. 131 ; Tiermen y. Jackson, "By the common law, choses in action 
5 Peters, 5^0 ; Sargeant v. Sargeant, 3 were not assignable except to the crown. 
Waslib. 371 ; Head v. Shaver, 9 Ala. 791. The civil law considers them as, strictly 

^ Alner v. George, 1 Campb. 305, per speaking, not assignable ; but, by the 

Ld. Ellenborough ; Gibson v. Winter, 5 invention of a fiction, the Roman juris- 

B. & A. 06; Craib t-.DAeth, 7 T. R. 670, consults contrived to attain this object, 

n. (b) ; Leigh v. Leigh, 1 13. & P. 447; The creditor who wished to transfer his 



212 



LAW OF EVIDENCE. 



[PAET n. 



§ 174. Parties jointly interested. Though the admissions of a 
party to the record are generally receivable in evidence against 
him, 3^et, where there are several parties on the same side^ the ad- 
missions of one are not admitted to affect the others, who may 
happen to be joined with him, unless there is some joint interest 
or privity in design between them ; ^ although the admissions 
may, in proper cases, be received against the person who made 
them. Thus, in an action against joint makers of a note, if one 
suffers judgment by default, his signature must still be proved 
against the other.^ And even where there is a joint interest, a 
release, executed by one of several plaintiffs, will, in a clear case 
of fraud, be set aside in a court of law.^ But in the absence of 
fraud, if the parties have a joint interest in the matter in suit, 
whether as plaintiffs or defendants, an admission made by one is, 
in general, evidence against all.* They stand to each other, in 



right of action to another person, consti- 
tuted him his attorney, or procurator in 
rem suam as it was called; and it was 
stipulated that the action should be 
brought in the name of the assignor, but 
for the benefit and at the expense of the 
assignee. Pothier de Vente, No. 550. 
After notice to the debtor, this assign- 
ment operated a complete cession of the 
debt, and invalidated a payment to any 
other person than the assignee, or a re- 
lease from any other person than him. 
Id. 110, 554; Code Napoleon, liv. 3, tit. G ; 
De la Vente, c. 8, § 1090. The court of 
chancery, imitating, in its usual spirit, the 
civil law in this particular, disregarded 
the rigid strictness of the common law, 
and protected the rights of tiie assignee 
of chosfis in (iction. This liberality was at 
last adojjted by the courts of common 
law, who now consider an assignment of 
a chose in action as substantially valid, 
only preserving, in certain cases, the 
form of an action commenced in the 
name of the assignor, the beneficial in- 
terest and control of the suit being, how- 
ever, consiilered as completely vested in 
the assignee, as procurator in rem suam. 
See Master v. Miller, 4 T. R. ;]40; An- 
drews i'. Beecker, 1 Johns. Cas.41 1 ; Bates 
('. New York Insurance Companv, 3 
Johns. Cas. 242; Wanlell v. Eden, 1 
Johns. 532, in tiolis ; Carver t;. Tracy, 
•S Johns 420; Raymond i-. Squire, ll 
Johns. 47 ; Van Vechten v. Greves, 4 
Johns. 40(J; Weston v. Barker, 12 Joiins. 
27')." See the reporter's note to 1 
Wheat. 2;»7. But where the nominal 
plaintiff was constituted, by the party in 



interest, liis agent for negotiating the 
contract, and it is expressly made with 
him alone, he is treated, in an action 
upon such contract, in all respects as a 
party to the cause ; and any defence 
against him is a defence, in that action, 
against the cestui que trust, suing in his 
name. Therefore, where a broker, in 
whose name a policy of insurance under 
seal was effected, brought an action of 
covenant thereon, to which payment was 
pleaded ; it was held that payment of 
the amount of loss to the broker, by 
allowing him credit in account for that 
sum, against a balance for premiums due 
from him to the defendants, was a good 
payment, as between the plaintiff on the 
record and the defendants, and, there- 
fore, an answer to the action. Gibson v. 
Winter et al., 5 B. & Adol. ^6. This case, 
however, may, with equal and perhaps 
greater propriety, be referred to the law 
of agency. See Riciiardson i: Anderson, 
1 Campb. 43, n. ; Story on Agency, § 413, 
420-434. 

' See snprn, §§ 111, 112 ; Dan et nl. v. 
Brown, 4 Cowen, 483, 492; Rex v. llard- 
wick, 11 East, 578, 589, per Le Blanc, J.; 
Whitcomb i;. Whiting, 2 Doug. 0-J2. 

2 Gray i>. Palmer, 1 Esp. 135. See 
also Sheriff v. Wiiks, 1 East, 48.. 

3 Jones et al. v. Herbert, 7 Taunt. 421 ; 
Loring et al. v. Brackett, 3 Pick. 403; 
Skaife et al. v. Jackson, 3 B. & C. 421; 
Henderson ft al. r. Wild, 2 Campb. 501. 

* Sucii was the doctrine laid down by 
Ld. Mansfield in Wiiitcomb i-. Whiting, 2 
Doug. 052. Its propriety, and tiie extent 
of its aiiplication, have been much dis- 



CHAP. XI.] 



OF AD:\nSSIONS. 



213 



this respect, in a relation similar to that of existing copartners. 
Thus, also, the act of making a partial payment within six years, 
by one of several joint makers of a promissory note, takes it out 
of the statute of limitations.^ And where several were both 
legatees and executors in a will, and also appellees in a question 
upon the probate of the will, the admission of one of them, as to 
facts which took place at the time of making the will, showing 
that the testatrix was imposed upon, was held receivable in evi- 
dence against the validity of the will.^ And where two were 



cussed, and sometimes questioned ; but it 
seems now to be clearly established. See 
Perham v. Ravnal, 2 Bing. 306 ; Burleigh 
V. Stott, 8 B. & C. 36 ; Wyatt v. Hodson, 
8 Bing. 309 ; Brandram v. Wharton, 1 B. 
& A. 467 ; Holme v. Green, 1 Stark. 488. 
See also, accordingly. White (-•. Hale, 3 
Pick. 291; Martin v. Root, 17 Mass. 222; 
Hunt V. Briiiham, 2 Pick. 581 ; Frye v. 
Barker, 4 Pick. 382; Beitz v. Fuller, 1 
McCord, 541 ; Johnson v. Beardslee, 1 
Johns. 3; Bound v. Lathrop, 4 Conn. 336; 
Coit V. Tracy, 8 Conn. 268, 276, 277; 
Getchell V. Heald, 7 Greenl. 26; Owings 
r. Low, 5 Gill & Johns. 144; Patterson v. 
Choate, 7 Wend. 441 ; Mclntire v. Oliver, 
2 Hawks, 209; Cady v. Shepherd, 11 
Pick. 400; Van Reimsdvk v. Kane, 1 
Gall. 635, 636 [Barrick'y. Austin, 21 
Barb. 241; Camp v. Dill, 27 Ala. 553]. 
But see Bell v. Morrison, 1 Peters, 351. 
But the admission must be distinctly 
made by a party still liable upon the 
note ; otherwise it will not be binding 
against the others. Therefore, a pay- 
ment appropriated, by the election of the 
creditor only, to the debt in question, is 
not a sufficient admission of that debt, 
for this purpose. Holmes v. Green, ubi 
sup. Neither is a payment, received 
under a dividend of the effects of a bank- 
rupt promisor. Brandram i'. Wharton, 
xibi sup. In this last case, the opposing 
decision in Jackson v. Fairbank, 2 H. Bl. 
340, was considered and strongly disap- 
proved ; but it was afterwards cited by 
Holroyd, J., as a valid decision, in Bur- 
leigh V. Stott, 8 B. & C. 36. The admis- 
sion where one of the promisors is dead, 
to take the case out of tlie statute of lim- 
itations against him, must have been 
made in his lifetime, Burleigh v. Stott, 
supra ; Slatter v. Lawson, 1 B. & Ad. 396; 
and by a party originally liable, Atkins 
V. Tredgold, 2 B. & C. 23. This effect of 
the admission of indebtment by one of 
several joint promisors, as to cases barred 
by the statute of limitations, when it is 
merely a verbal admission, witliout part 
payment, is now restricted in England, 



to the party making the admission, by 
Stat. 9 Geo. IV. c. 14 (Lord Tenterdcn's 
Act). So in Massachusetts, by Gen. Stat, 
c. 155, §§ 14, 16; and in Vermont, Rev. 
Stat. c. 58, §§ 23, 27. The application 
of this doctrine to partners, after the 
dissolution of the partnership, has al- 
ready been considered. Supra, § 112, n. 
Whethera written acknowledgment, made 
by one of several partners, stands upon 
different ground from that of a simi- 
lar admission by one of several joint 
contractors, is an open question. Clark 
V. Alexander, 8 Jur. 496, 498. See post, 
vol. ii. §§ 441, 444; Pierce v. Wood, 3 
Foster, 520. [But more recent cases, 
both in this country and in England, have 
denied that, from tlie mere fact of part 
payment, tlie jury are authorized to infer 
a promise to pay the rest. Davies v. 
Edwards, 6 Eng. L & Eq. 550; s. c- 15 
Jur. 1044, where Jackson v. Fairbank, 
and Brandrum r. Wharton, are said not 
to iiave been well considered. So now 
bv Stat. 19 & 20 Vict. c. 97 ; Jackson v. 
Wooley, 8 E. & B. 784 ; Smith v. W^-st- 
moreland, 12 S. & M. (Miss.) 663 ; David- 
son V. Harrison, 33 Miss. 41 ; Roscoe v. 
Hale, 7 Gray (Mass.), 274; Stoddard v. 
Doane, Id. 387 ; and note to Bradfield i'. 
Tupper, 7 Eng. L. & Eq. 541. Also 
Shoemaker v. Benedict, 1 Ker. (X. Y.) 
176; Coleman v. Fobes, 22 Pa. 308; 
Bush V. Stowell, 71 Pa. St. 208 ; Angell 
on Limitations, 6th ed. §§ 240, 260, where 
the subject, both as to payments and ad- 
missions, is fully treated, and the authori- 
ties are collected.] 

1 Burleigh v. Stott, 8 B. & C. 36 ; 
Munderson v. Reeve, 2 Stark. Evid. 484 ; 
Wyatt V. Hodson, 8 Bing. 309 ; Chipjien- 
dale V. Thurston, 4 C. & P. 98; s. c. 1 M. 
& M. 411 ; Pease v. Hirst, 10 B. & C. 122. 
But it must be distinctly shown to be a 
payment on account of the particular 
debt. Holme v. Green, 1 Stark. 488. 

2 Atkins V. Sanger et al., 1 Pick. 192. 
See also Jackson v. Vail, 7 Wend. 125 ; 
Osgood V. The Manhattan Co., 3 Cowen, 
612. 



214 



LAW OF EVIDENCE. 



[PAUT n. 



bound in a single bill, the admission of one was held good against 
both defendants.^ 

§ 175. Corporators. In settlement cases, it has long been held 
that declarations by rated parishioners are evidence against the 
parish ; for they are parties to the cause, though the nominal 
parties to the appeal be church-wardens and overseers of the poor 
of the parish.2 The same principle is now applied in England to 
all other prosecutions against towns and parishes, in respect to 
the declarations of ratable inhabitants, they being substantially 
parties to the record.-^ Nor is it necessary first to call the inhabi- 
tant, and show that he refuses to be examined, in order -to admit 
his declarations.* And the same principle would seem to apply 
to the inhabitants of towns, counties, or other territorial political 
divisions of this country, who sue and are prosecuted as inhabi- 
tants, eo nomine, and are termed quasi corporations. Being parties 
personally liable, their declarations are admissible, though the 
value of the evidence may, from circumstances, be exceedingly 
lio-ht.5 



1 LowQ V. Boteler et al., 4 Har. & 
McHen. 346 ; Vicary's case, 1 Gilbert, 
Evid. by Lofft, p. 50, n. 

- Rex V. Inhabitants of Hardwick, 11 
East. 579. See snpm, §§ 128, 129. 

8 Reg. V. Adderbury, 5 Ad. & El. n. s. 
187. 

* Rex (\Inhabitants of Whitley Lower, 

1 M. & S. 037 ; Rex v. Inhabitants of 
Woburn, 10 East, 3u5. 

5 11 East, 586, per Ld. Ellenborough ; 

2 Stark. Evid. 580. Tlie statutes render- 
ing (jitiisi corporators competent witnesses 
(see 51 Geo. III. c. 170 ; 3 & 4 Vict. c. 25) 
are not understood as interfering with the 
rule of evidence respecting admissions, 
riiil. & Am. on Evid. 395, and n. (2) ; 
1 Phil. Evid. 375, n. (2). In some of the 
United States, similar statutes have been 
enacted, hh. Vermont (Rev. Code, 1839), 
c. 31, § 18; Massacliiisetts, Rev. Stat. c. 
94, § 54 ; Delnware (Rev. Code, 1829), p. 
444 ; New York, Rev. Stat. vol. i. pp. 
408, 439 (3d ed.) ; Mnine, Rev. Stat. 1840, 
c. 115, § 75; New Hampshire, Rev. Stat. 
1842, c. 188, § 12 ; Pennsi/lrauin, Dunl. 
Dig. pp. 215, '913, 1019, 11G5; Midiiqnu, 
Rev. Stat. 1840, c. 102. § 81. In several 
States, the interest of inhabitants, nit-rely 
as such, has been deemed too remote and 
contingent, as well as too minute, to dis- 
qualify them, and they have been held 
competent at common law. Eustis v. 
Parker, 1 N. H. 273; Cornwell v. Isham, 
1 Day, 35; EuUer v. Ilamptou, 5 Conn. 



416; Falls v. Belknap, 1 Johns. 486; 
Bloodgood V. Jamaica, 12 Johns. 284 ; 
Ex parte Kip, 1 Paige, 613; Corwein r. 
Hames, 11 Johns. 76; Orange v. Spring- 
field, 1 Southard, 18« ; State r. Davidson, 

1 Bayley, 36 ; Jonesboroiigh v. McKee, 

2 Yerger, 167; Gass v. Gass, 3 Humph. 
278, 285. See infra, § 331. [The doc- 
trine of the text is tiius strenuously con- 
troverted by Judge Redfield. " We be- 
lieve the practice is not general, in 
the American States, to admit the dec- 
larations of the members of a corpora- 
tion, as evidence against the corporation 
itself. And it seems to us, tliat upon 
principle they are clearly inadmissible. 
There is no rule of law better settled than 
that the admissions of a shareholder will 
not bind the corporation. Nor will the 
admission of a director or agent of a pri- 
vate corporation bind tiie company, e.x- 
cept as a part of the res (jeaUv. And it 
will make no difference that the action 
is in the corporate name of the pnrsident 
and directors ; that does not make them 
parties in person. And we see no more 
reason why the admissions of the inhabi- 
tants of a town or parish should bind the 
municipality, because the action happens 
to 1)6 in form, in the name of such inhab- 
itants, than tliat all the admissions or 
declarations of the people at large should 
be evidence against the public ])rosecutor 
in criminal proceedings, when they are 
instituted in the name of The People, 



CHAP. XI.] OF ADjnSSIONS. 215 

§ 176. Mere community of interest not enough. It is a joint 
interest, and not a mere commnnity of interest, that renders such 
admissions receivable. Therefore the admissions of one executor 
are not received, to take a case out of the statute of limitations, 
as against his coexecutor.^ Nor is an acknowledgment of in- 
debtment by one executor admissible against his coexecutor, 
to establish the original demand.^ The admission of the receipt 
of money, by one of several trustees, is not received to charge 
the other trustees.^ Nor is there such joint interest between a 
surviving promisor, and the executor of his copromisor, as to 
make the act or admission of the one sufficient to bind the other.'* 
Neither will the admission of one who was joint j)romisor with a 
feme sole be received to charge her husband, after the marriage, 
in an action against them all, upon a plea of the statute of limi- 
tations.'^ For the same reason, namely, the absence of a joint 
interest, the admissions of one tenant in common are not receiva- 
ble against his cotenant, though both are parties on the same 
side in the suit.^ Nor are the admissions of one of several 
devisees or legatees admissible to impeach the validity of the will 
where they may affect others not in privity with him.' Neither 
are the admissions of one defendant evidence against the other, 
in an action on the case for the mere negligence of both.^ 

§ 177. Interest must be real. It is obvious that an appare)7t 
joiyit interest is not sufficient to render the admissions of one 
party receivable against his companions where the reality of that 

which we believe would be regarded as & Rawl. 75; Hathaway v. Haskell, 9 

an absurdity, by every one. We con- Pick. 42. 

elude, therefore, that in no such case can ^ Pittnam v. Foster et al., 1 B. & C. 

the admission or declaration of a corpo- 248. 

rator be fairly regarded as evidence "^ Dan et al. v. Brown et al., 4 Cowen, 

against the corporation. Watertown i'. 483, 492. And see Smith v. Vincent, 15 

Cowen, 4 Paige, 510 ; Burlington v. Cal- Conn. 1. 

ais, 1 Vt. 385 ; Low v. Perkins, 10 Vt. ^ Hauberger v. Root, 6 Watts & Serg. 

532.] 431. 

1 Tullock y. Dunn, R.&M. 410. Qita;re, 8 Daniels v. Potter, 1 M. & M. 501; 

and see Hamraon v. Huntley, 4 Cowen, snpra,^ 111. Neither is there such privity 

49;5. But the declarations of an executor among the members of a board of public 

or a Iministrator are admissible against officers, as to make the admissions of one 

him, in any suit by or against him in binding on all. Lockwood v. Smith et al., 

that character. Faunce w. Gray, 21 Pick. 6 Day, 309. Nor among several indorsers 

243. of a promissory note, olaymaker ;;. 

^ Hammon v. Huntley, 4 Cowen, 49.3; Gundacker's Ex'r, 10 Serg. & Eawl. 75. 

James i-. Hackley, 16 Johns. 277; For- Nor between executors and heirs or 

syth V. Ganson, 5 Wend. 558. devisees. Osgood v. Manhattan Co., 3 

8 Davies v. Ridge et al., 3 Esp. 101. Cowen, 611. [Tlie same rule applies to 

* Atkins V. Tredgold et al., 2 B. & C. the admissions of codefcndants in ac- 

23; Slater v. Lawson, 1 B. & Ad. 396; tions of trover. Edgerton v. Wolf, 6 

Slaymaker v. Gundacker's Ex'r, 10 Serg. Gray, 453.] 



216 LAW OF EVIDEXCE. [PAJJT H. 

interest is tJie point in controversy. A foundation must first be 
laid, by showing, j)rima facie, that a joint interest exists. There- 
fore, in an action against several joint makers of a promissory 
note, the execution of which was the point in issue, the admis- 
sion of his signature only by one defendant was held not suffi- 
cient to entitle the plaintiff to recover against him and the others, 
though theirs had been proved ; the point to be proved against 
all being a joint promise by all.i And where it is sought to 
charge several as partners, an admission of the fact of partnership 
by one is not receivable in evidence against any of the others, to 
prove the partnersliip. It is only after the partnership is shown 
to exist, by proof satisfactory to the judge, that the admission of 
one of the parties is received, in order to affect the others.^ If 
they sue upon a promise to them as partners, the admission of 
one is evidence against all, even though it goes to a denial of the 
joint right of action, the partnership being conclusively admitted 
by the form of action .^ 

§ 178. Answers in chancery. In general, the ansiver of one 
defendant in chancery cannot be read in evidence against his co- 
defendant ; the reason being, that, as there is no issue between 
them, there can have been no opportunity for cross-examination,^ 
But this rule does not apply to cases where the other defendant 
claims through him whose answer is offered in evidence ; nor to 
cases where they have a joint interest, either as partners or other- 
wise, in the transaction.^ Wherever the confession of any party 
would be good evidence against another, in such case liis answer, 
a fortiori, may be read against the latter.^ 

§ 179. Guardians, executors, &c. The admissions which are 

1 Gray v. Palmer et ah, 1 Esp. 135 * Jones v. Tuberville, 2 Ves. 11 ; 

[Boswell V. Blackman, 12 Geo. 501]. Morse v. Royall, 12 Ves. 355, 360; Leeds 

- Nichols V. Doweling et nl., 1 Stark, v. The Marine Ins. Co. of Alexandria, 

81 ; Grant v. Jackson <ft «/.,Peake's Gas. 2 Wheat. 380; Gresley on Eq. Evid. 24 ; 

204 ; Bur{iess J.'. Lane €< «/., 3 Greenl. 165 ; Field v. Holland, 6 Cranch, 8; Clark's 

(iraft.in Bank v. Moore, 13 N. IT. 90. Ex'rs n. Van Keimsdyk, 9 Cranch, l-'):]; 

See s"/'r<7, § 112 ; 7»o.s^ vol. ii. § 484; La- Van Keimsdyk v. Kane, 1 Gall. OoO; 

thaii V. Ke'nniston, 18 N. H. 203; Whit- Parker v. Morrell, 12 Jur. 253; 2 C. & 

ney v. Ferris, 10 Johns. 06; Wood v. K. 609; Morris v. Nixon, 1 How. S. C. 

Braddick, 1 Taunt. 104 ; Sangster v. Maz- 48. 

zaredo f< '//., 1 Stark. 161 ; Van Reimsdyk 8 Field v. Holland, G Cranch, 8,24; 

V. Kane, 1 Gall. 635; Harris y.^Viison, Clark's Kx'rs c. Van Hchnsdyk, Cranch, 

7 Wend. 57; Biickman v. Barnum, 15 153,156; Osborn ?•. United States Bank, 

Conn. 68 [Allcott r. Strong, 9 Cash. 323; 9 Wheat. 738, 832; Christie v. Bishop, 1 

Dutton V. Woodman, Id. 255; Bich i;. Barb. Ch. 105, 116. 
Flanders, 30 N. II. :5)4]. » Van Reimsdyk v. Kane, 1 Gall. 630, 

3 Lucas et al. v. De La Cour, 1 ]M. & S. 635. 
219. 



CHAP. XI.] OF AD:\nSSIONS. 217 

thus receivable in evidence must, as we have seen, be those of a 
person having at the time some interest in the matter afterwards 
in controversy in the suit to which he is a party. The admis- 
sions, therefore, of a guardian, or of an executor or administrator, 
made before he was completely clothed with that trust, or of a 
prochein amy, made before the commencement of the suit, cannot 
be received, either against the ward or infant in the one case, or 
against himself, as the representative of heirs, devisees, and 
creditors, in the other ; ^ though it may bind the person liimself, 
when he is afterwards a party, suo jure, in another action. A 
solemn admission, however, made in good faith, in a pending 
suit, for the purpose of that trial only, is governed by other con- 
siderations. Thus, the plea of nolo contendere, in a criminal case, 
is an admission for that trial only. One object of it is to prevent 
the proceedings being used in any other place ; and therefore it 
is held inadmissible in a civil action against the same party .^ So, 
the answer of the guardian of an infant defendant in chancery 
can never be read against the infant in another suit ; for its office 
was only to bring the infant into court and make him a party .^ 
But it may be used against the guardian, when he afterwards is 
a party in his private capacity ; for it is his own admission upon ' 
oath.'^ Neither can the admission of a married woman, answering 
jointly with her husband, be afterwards read against her, it being 
considered as the answer of the husband alone. ^ 

§ 180. Admissions of parties not of record. We are next to 
consider the admissions of persons who are not parties to the 

1 Webb V. Smith, R. & M. 106 ; Eraser own, are admissible against the plaintiff, 

V. Marsh, 2 Stark. 41 ; Cowling v. Ely, Id. as being the declarations of a party to 

3136 ; Plant z^.^cEwen, 4 Conn. 544. So, tlie record. Tenney v. Evans, 14 N. H 

the admissions of one, before he became 34-3 [post, § 180, n.l. 
assignee of a bankrupt, are not receivable •^ Guild v. Lee, 3 Law Reporter, p. 433 

against him, where suing as assignee. So, an admission in one plea cannot be 

Fenwick v. Thornton, 1 M. & M. 51 called in aid of the issue in another 

[Legge V. Edmonds, 25 L. J. Ch. 125 ; Stracey v. Blake, 3 C. M. & R. 168 ; Jones 

Metiers v. Brown, 32 L. J. Ex. 140. The v. Flint, 2 P. & D. 594 ; Gould on Plead 

ruling to the contrary by Tyndal, C. J., ing, 432, 433; Mr. Hand's note to Jack 

in Smith v. Morgan, 2 M. & Rob., seems son v. Stetson, 15 Mass. 58. 
to be regarded as unsound in England]. 8 Eggleston v. Speke, alias Petit, 

Nor is the statement of one partner ad- Mod. 258, 259; Hawkins v. Luscombe, 2 

missible against the others, in regard to Swanst. 392, cases cited in note ( 

matters which were transacted before he Story on Eq. PI. 668 ; Gresley on Eq. 

became a partner in the house, and in Evid. 24, 323; Mills v. Dennis, 3 Johns 

which he had no interest prior to that Ch. 367. 

time. Catt v. Howard, 3 Stark. 3. In 4 Beasly v. Magrath. 2 Sch. & Lefr, 

trover by an infant siiingby his guardian, 34; Gresley on Eq. Evid. 323. 
the statements of the guardian, tending ^ Hodgson v. Merest, 9 Price, 563; 

to show that the property was in fact his Elstou v. Wood, 2 My. & K. 678. 



218 



LAW OF EVIDENCE. 



[PAUT n. 



record, but yet are interested in the sulject-matter of tlie suit. 
The law, in regard to this source of evidence, looks chiefly to 
the real parties in interest, and gives to their admissions the 
same weight as though they were parties to the record. Thus 
the admissions of the cestui que trust of a bond ; ^ those of the 
persons interested in a policy effected in another's name, for 
their benefit ; ^ those of the ship-owners, in an action by the 
master for freight ; ^ those of the indemnifying creditor, in an 
action against the sheriff ; * those of the deputy-sheriff, in an 
action against the high-sheriff for the misconduct of the deputy ; ^ 
are all receivable against the party making them. And, in 
general, the admissions of any party represented by another are 
receivable in evidence against his representative.^ But here, 



1 Hanson v. Parker, 1 Wils. 257. See 
also Harrison f. Vallance, 1 Bing. 45. But 
the declarations of tlie cestui que trust are 
admissible, only so far as his interest and 
that of the trustee are identical. Doe i'. 
Wainwright, 3 Nev. & P. 598. And the 
nature of liis interest must be shown, even 
though it be admitted that he is a cestui 
que trust. May v. Taylor, 6 M. & Gr. 261. 
[Tlie admissions of a silent partner, not a 
party to record, may be given in evidence. 
Weed V. Kellogg, 6 McLean, 44. But 
the admissions ot one of several cestuis que 
trust of real estate are not admissible to 
defeat the title of the trustee. Pope v. 
Devereux, 5 Gray, 40!>.] 

2 Bell V. Ansley, 16 East. 141, 143. 

3 Smith V. Lyon, 3 Campb. 465. 

* Dovvdon V. Powle, 4 Campb. 38 ; 
Dyke v. Aldridge, cited 7 T. R. 665; 11 
East, 584; Young v. Smith, 6 Esp. 121; 
Harwood v. Keyes, 1 M. & Rob. 204; 
Proctor V. Lainson, 7 C. & P. 629. 

* The admissions of an under-sheriff 
are not receivable in evidence against the 
sheriff", unless they tend to charge himself, 
he being the real party in the cause. He 
is not regarded as the general officer of 
tlie slierilT, to all intents. Snowball v. 
Goodricke, 4 B. & Ad. 541 ; tiiough the 
admissibility of his declarations has some- 
times been placed on that ground. Drake 
17. Sykes, 7 T. R. 113. At otiier times 
they have been received on tlie ground, 
tliat, being liable over to the sheriff, lie is 
the real parly to the suit. Yaljsley v. 
Doble, 1 Ld. Uaym. 100. And wliere the 
sheriff has taken a general bond of indem- 
nity from the under-officer, and lias given 
hiin notice of tlie pendency of the suit, 
and required liiiu to defend it, the latter is 
in fact the real ])arty in interest, whenever 
the sheriff is sued for his default; and his 



admissions are clearly receivable, on prin- 
ciple, when made against liimself. It has 
elsewhere been said, that the declarations 
of an under-sheriff are evidence to charge 
the sheriff, only where his acts might be 
given in evidence to charge liim; and 
then, rather as acts than as declarations, 
the declarations being considered as part 
of the les qestte. Wheeler v. Ilambriglit, 
9 Scrg. & R. 396, 397. See Scott v. Mar- 
shall, 2 Cr. & Jer. 238 ; Jacobs v. Hum- 
phrey, 2 Cr. & Mees. 413; s. c. 2 Tyrw. 
272. But whenever a person is bound by 
the record, he is, for all pur])Oses of evi- 
dence, the party in interest, and, as such, 
his admissions are receivable against him, 
both of the facts it recites, and of the 
amount of damages, in all cases where, 
being liable over to the nominal defend- 
ant, he has been notified of the suit, and 
required to defend it. Clark's E.x'rs v. 
Carrington, 7 Cranch, 822; Hamilton r. 
Cutts, 4 Mass. 349; Tyler v. Ulmer, 12 
Mass. 106 : Duffield r. Scott. 3 T. R. 374 ; 
Kip 1'. Brigham, 6 Jones, 158 ; 7 Johns. 
108; Bender v. Fromberger, 4 Dall. 436. 
See also Carlisle v. Garland, 7 Bing. 298; 
North r. Miles, 1 Campb. 389; Howslier 
V. Calley, 1 Campb. 391, n. ; Underhill v. 
Wilson, Bing. 097 ; Bond v. Ward, I 
Nott & McCord, 201; Carmack v. The 
Commonwealth, 5 Binn. 184; Sloman v. 
Heme, 2 Esp. G95; Williams v. Bridges, 
2 Stark. 42; Savage r. Balcli, 8 Grc^'ul. 
27. [The admissions of a party named 
as an executor and legatee of a will, as 
to the unsoundness of the mind of the 
testator, are admissible, U])on a probate 
of the will. Robinson v. Hutchinson, 31 
Vt. 44.3.] 

e Stark. Evid. 20; North v. Miles, 1 
Campb. 390. [In an action by a father 
for the loss of the life of the son, the dec- 



CHAP. XI.] OF AD^nSSIONS. 219 

also, it is to Ije observed, that the declarations or admissions 
must have been made while the party making them had some 
interest in the matter ; and they are receivable in evidence only 
so far as his own interests are concerned. Thus, the declaration 
of a bankrupt, made before his bankruptcy, is good evidence to 
charge his estate with a debt ; but not so if it was made after- 
wards.^ While the declarant is the only party in interest, no 
harm can possibly result from giving full effect to his admissions. 
He may be supposed best to know the extent of his own lights, 
and to be least of all disposed to concede away any that actually 
belonged to him. But an admission, made after other persons 
liave acquired separate rights in the same subject-matter, cannot 
be received to disparage their title, however it may affect that of 
the declarant himself. This most just and equitable doctrine 
will be found to apply not only to admissions made by bankrupts 
and insolvents, but to the case of vendor and vendee, payee and 
indorsee, grantor and grantee, and, generally, to be the pervading 
doctrine in all cases of rights acquired in good faith, previous to 
the time of making the admissions in question.^ 

§ 181. Admissions of strangers. In some cases, the admissions 
of third persons^ strangers to the suit, are receivable. This arises 
when the issue is substantially upon the mutual rights of such 
persons at a particular time ; in which case the practice is to let 
in such evidence in general, as would be legally admissible in an 
action between the parties themselves. Thus, in an action against 
the sheriff for an escape, the dfibtor's acknowledgment of the 
debt, being sufficient to charge him in the original action, is 
sufficient, as against the sheriff, to slipport the averment in the 
declaration that the party escaping was so indebted.^ So, an 
admission of joint liability by a tliird person has been held suffi- 
cient evidence, on the part of the defendant, to support a plea in 
abatement for the non-joinder of such person as defendant in the 
suit ; it being admissible in an action against him for the same 

lavations of the son after the injury as to Eggleston, 14 Mass. 245, 250, 251 ; Phe- 

the cause are admissible against the nix y. Ingraliam, 5 Johns. 412 ; Packer w. 

father. Stern v. R. R. Co., C. C. P. Phila. Gonsalus, 1 Serg. & R. 526 ; Patton v, 

7 Leg. Gazette, 223.] Goldsborough, 9 Serg. & R. 47 ; Bahb 

1 Bateman v. Bailey, 5 T. R. 513; v. Clemson, 12 Serg. & R. 328 [uifra, 
Smith V. Simmes, 1 Esp. 330; Deady v. § 190J. 

Harrison, 1 Stark. 60 [infra, § 190]. 3 Sloman v. Heme, 2 Esp. 695; Wil- 

2 Bartlett v. Delprat, 4 Mass. 702, 708 ; lianis v. Bridges, 2 Stark. 42; Kempland 
Clarke v. Waite, 12 Mass. 439 ; Bridge v. v. Macauley, Peake's Cas. 65. 



220 LAW OF EVIDENCE. [PABT H. 

caiise.^ And the admissions of a bankrupt, made before the act 
of bankruptcy, are receivable in proof of the petitioning creditor's 
debt. His declarations, made after the act of bankruptcy, though 
admissible against himself, form an exception to this rule, because 
of the intervening rights of creditors, and the danger of fraud.^ 
- § 182. Referees. The admissions of a third person are also 
receivable in evidence, against the party who has expressly re- 
ferred another to him for information, in regard to an uncertain 
or disputed matter. In such cases, the party is bound by the 
declarations of the person referred to, in the same manner, and 
to the same extent, as if they were made by liimself.^ Thus, 
upon a plea of plene administravit^ where the executors wrote to 
the plaintiff, that, if she wished for further information in regard 
to the assets, she should apply to a certain merchant in the city, 
they were held bound by the replies of the merchant to her in- 
quiries upon that subject.^ So, in assumpsit for goods sold, 
where the fact of the delivery of them by the carman was dis- 
puted, and the defendant said, " If he will say that he did deliver 
the goods, I will pay for them," he was held bound by the 
affirmative reply of the carman.^ 

§ 183. Interpreter. Tliis princijDle extends to the case of an 
interpreter whose statements of what the party says are treated 
as identical with those of the party himself ; and therefore may 
be proved by any person who heard them, without calling the 
interpreter.^ 

1 Clay V. Langslow, 1 M. & M. 45. collusion. Chapel v. "Washburn, 11 Ind. 

Sed qiuvre, and see infra, § .395. 393.] 

'i Hoare v. Cory ton, 4 Taunt. 660; 2 » [Turnery. Yates, 16 How. (U. S.) 14 ; 

Rose, 158; Robson i;. Kemp, 4 Esp. 2.34 ; Chapman v. Twitchell, 37 Maine, 59; 

Watts V. Tliorpe, 1 Caiiipb. 376; Small- Cliadsey v. Greene, 24 Conn. 5G2.] 
combe V. Burtfes, McClel. 45; s. c. 13 * Williams v. Innes, 1 Canipb. 364. 

Price, 136 ; Taylor v. Kinloch, 1 Stark. ^ Daniel v. Pitt, 1 Campb. 306, n. ; 

175; '2 Stark. 5'J4; Jarrett >•. Leonard, 2 s. c. 6 Esp. 74; Brock v. Kent, Id.; Burt 

M. & S. 265. Tiie dictum of Lord Ken- v. Palmer, 5 Esp. 145 ; Hood r. Reeve, 

yon, in Dowton v. Cross, 1 Esp. 168, that 3 C. & P. 532. [So if a party uses the 

the admissions of a bankrupt, made after affidavit or deposition of another to prove 

the act of bankruptcy, but before the a certain fact, lie may be held to have 

commission issued, are receivable, is con- admitted tiie fact. Brickell v. Hulse, 7 

tradicted in 13 Price, 153, 1-54, and over- A. & E. 454; Gardner i;. Moult, 10 A. & 

ruled by that and the other cases above E. 464.] 

cited. See also Bernasconi r. Farebrotiier, ^ Fabrigas v. Mostj'n, 11 St. Tr. 171. 

3 B. &. Ad. 372. [Tiie evidence of the [But this rule does not apply to tlie case 

principal will not ciiarge the surety, of an interpreter of a witness in court, 

especially after the transaction is termi- He is not the agent of the party calling 

nated. Chelmsford Co. v. Demarest, 7 him, but rather an olHcer of court, and 

Gray, 1. But the admission of the surety liis declarations are admis.-iibie only under 

ia good against both in tiie absence of the conditions stated in § 163. Shearer 



CHAP. XI.] OF ADI^nSSIONS. 221 

§ 184. Not conclusive. Whether the answer of a person thus 
referred to is conclusive against the party does not seem to have 
been settled. Where the plaintiff had offered to rest his claim 
upon the defendant's affidavit, which was accordingly taten, Lord 
Kenyon held, that he was conclusively bound, even though the 
affidavit had been false ; and he added, that to make such a 
proposition and afterwards to recede from it was mala fides ; bi; t 
that, besides that, it might be turned to very improper purposes, 
such as to entrap the witness, or to find out how far the party's 
evidence would go in support of his case.^ But in a later case, 
where the question was upon the identity of a horse, in the 
defendant's possession, with one lost by the plaintiff, and the 
plaintiff had said, that, if the defendant would take his oath that 
the horse was his, he should keep him, and he made oath accord- 
ingly, Lord Tenterden observed, that, considering the loose 
manner in which the evidence had been given, he would not 
receive it as conclusive ; but that it was a circumstance on which 
he should not fail to remark to the jury.^ And certainly the 
opinion of Lord Tenterden, indicated by what fell from him in 
this case, more perfectly harmonizes with other parts of the law, 
especially as it is opposed to any further extension of the doc- 
trine of estoppels, which sometimes precludes the investigation 
of truth. The purj)oses of justice and policy are sufficiently 
answered, by throwing the burden of proof on the opposing 
party, as • in a case of an award, and holding him bound, unless 
he impeaches the test referred to by clear proof of fraud or mis- 
take.^ 

§ 185. Admissions of wife. The admissions of the wife will bind 
the husband, only where she has authority to make them.* This 

I'. Harber, 36 Ind. 536.] The cases of tlie parol submissions, and therefore conclu- 

reference of a disputed liability to tlie sive, unless impeached for causes recog- 

opinion of legal counsel, and of a dis- nized in the law of awards, 

puted fact regarding a mine to a miner's ^ Stevens v. Thacker, Peake's Cas. 

jury, have been treated as falling under 187; Lloyd v. Willan, 1 Esp. 178; Deles- 

this head; the decisions being held bind- line v. Greenland, 1 Bay, 458, ace, where 

ing as the answers of persons referred to. the oath of a tliird person was referred to. 

How far the circumstance, that if treated See Reg. i'. Moreau, 36 Leg. Obs. 61) ; 11 

as awards, being in writing, they would Ad. & El. 1028, as to the admissibility of 

have been void for want of a stamp, may an award as an admission of the party ; 

have led the learned judges to consider infra, § 537, n. (1). 

them in another light, does not appear. ^ Garnett i'. Ball, 3 Stark. 160. 

Sybray v. White, 1 M. & W. 435 [Price » Whitehead v. Tattersall,! Ad. & EI. 

V. HoUis, 1 M. & S. 105 ; Downs v. Cooper, 491. 

2 Q. B. 256]. But in this country, where * Emerson v. Blonden, 1 Esp. 142; 

no stamp is required, they would more Anderson v. Sanderson, 2 Stark. 204; 

naturally be regarded as awards upon Carey v. Adkins, 4 Campb. 92. In Wal- 



222 LAW OF EVIDENCE. [PAET H. 

authority does not result, by mere operation of law, from the 
relation of husband and wife; but is a question of fact, to be 
found by the jury, as in other cases of agency ; for though this 
relation is peculiar in its circumstances, from its close intimacy 
and its very nature, yet it is not peculiar in its principles. As 
the wife is seldom expressly constituted the agent of the husband, 
the cases on this subject are almost universally those of implied 
authority, turning upon the degree in which the husband per- 
mitted the wife to participate, either in the transaction of his 
affairs in general, or in the particular matter in question. Where 
he sues for her wages, the fact that she earned them does not author- 
ize her to bind him by her admissions of payment ; ^ nor can her 
declarations affect him, where he sues with her in her right; for 
in these, and similar cases, the right is his own, though acquired 
through her instrumentality.''^ But in regard to the inference of 
her agency from circumstances, the question has been left to the 
jury with great latitude, both as to the fact of agency and the 
time of the admissions. Thus, it has been held competent for 
them to infer authority in her to accept a notice and direction, 
in regard to a particular transaction in her husband's trade, from 
the circumstance of her being seen twice in his counting-room, 
appearing to conduct his business relating to that transaction, 
and once giving orders to the foreman.^ And in an action 
against the husband, for goods furnished to the wife, while in 
the country, where she was occasionally visited by him, her letter 
to the plaintiff, admitting the debt, and apologizing for the non- 
payment, though written several years after the transaction, was 
held by Lord Ellenborough sufficient to take the case out of the 
statute of limitations.* 

ton V. Green, 1 C. & P. G'21, which was an 2 Alban v. Pritchet,6 T. R. 680 ; Kelley 

action for necessaries funiislied to tiie r. Small, 2 Esp. 716; Denn v. White, 7 

wife, til? defence beinir that she was T. K. 112, as to her admission of a tres- 

turncd oat of doors for adultery, the hus- pass; IIod<,rkinson i\ Fletcher, 4 Campb. 

band wai permitted to prove her confes- 70. Neither are his admissions, as to 

eions of the fact, just previous to his facts respecting her property, which hap- 

turning her away ; but this was contem- pened before the marriage, receivable 

porary with the transaction of which it after his death, to affect the rights of the 

formed a part. surviving wife. Smitli v. Scudder, 11 

1 Hall V. Hill, 2 Str. 1094. An au- aerg. & R. 32.3. 
tiiority to the wife to conduct the ordinary * IMimmer r. Sells, 3 Nev. & M. 422. 

business of the shop in her husband's And see Riley v. Suydam, 4 Barb. S. C. 

absence does not authorize lier to bind 222. 

him by an ailmission, in regard to the * Gregorys. Parker, 1 Campb. 394; 

tenancy or the rent of the shop. Meredith Palethorp v. Furnish, 2 Esp. 511, n. 

I'. Footner, 11 M. & W. 202 [Jordan v. See also Clifford v. IJurton, 1 IJing. 199; 

Hubbard, 2G Ala. 4331. 8. c. 8 More, 16 ; Petty v. Anderson, 3 



CHAP. XI.] OF ADinSSIONS. 223 

§ 186. Attorneys of record. The admissions of attorneys of 
record bind their clients, in all matters relating to the progress 
and trial of the cause. But, to this end, they must be distinct 
and formal, or such as are termed solemn admissions, made for 
the express purpose of alleviating the stringency of some rule of 
practice, or of dispensing with the formal proof of some fact at 
the trial. In such cases, they are in general conclusive ; and 
may be given in evidence, even upon a new trial. ^ But other 
admissions, which are mere matters of conversation with an attor- 
ney, though they relate to the facts in controversy, cannot be 
received in evidence against his client. The reason of the dis- 
tinction is found in the nature and extent of the authority given ; 
the attorney being constituted for the management of the cause 
in court, and for nothing more.^ If the admission is made before 
suit, it is equally binding, provided it appear that the attorney 
was already retained to appear in the cause.^ But in the absence 
of any evidence of retainer at that time in the cause, there must 
be some other proof of authority to make the admission.* Where 
the attorney is already constituted in the cause, admissions made 
by his managing clerk or his agent are received as his own.^ 

§ 187. Principal as against surety. We are next to consider 
the admissions of a principal^ as evidence in an action against the 
surety^ upon his collateral undertaking. In the cases on tliis 
subject the main inquiry has been, whether the declarations of 
the principal were made during the transaction of the business for 
which the surety was bound, so as to become part of the res 
gestce. If so, they have been held admissible ; otherwise not. 
The surety is considered as bound only for the actual conduct of 
the part}'-, and not for whatever he might say he had done ; and 

Bing. 170 ; Cotes v. Davis, 1 Campb. 485. C. & K. 216 ; Watson v. King, 3 M. G. & 

[As to admissions of wife in divorce Sc. 608. 

cases for adultery, see post, vol. ii. § 40.] ^ Marshall v. Cliff, 4 Campb. 133. 

1 Doe V. Bird" 7 C. & P. 6 ; Langley v. < Wagstaff v. Wilson, 4 B. & Ad, .330. 

Lord Oxford, 1 IM. & W. .508. [But an oral 5 Taylor v. Williams, 2 B. & Ad 845, 

admission of a fact by the attorney during 856; Standage v. Creighton, 5 C. & P. 

the progress of the trial is not conclusive 400 ; Taylor r. Forster, 2 C. cSb P. 195 ; 

upon a second trial, especially if notice Griffiths v. Williams, 1 T. R. 710; Trus- 

of witiidrawal of the admission be given, love i'. Burton, 9 Moore, 64. As to the 

though it is evidence. Perry v. Simpson extent of certain admissions, see Holt v. 

Manuf. Co., 40 Conn. 313. But see Col- Squire, Ry. & M. 282 ; Marshall v. Cliff, 

ledge v. Horn, 3 Bing. 110.] 4 Campb. 133. The admission of the due 

- Young V. Wright, 1 Campb. 139, 141 ; execution of a deed does not preclude the 

Perkins v. Hawkshaw, 2 Stark. 239; party from taking advantage of a vari- 

Elton V. Larkins, 1 M. & Rob. 196 ; Doe ance. Goldie v. Shuttleworth, 1 Campb. 

V. Bird, 7 C. & P. 6 ; Doe v. Richards, 2 70. 



224 LAW OF EVIDENCE. [PAET H. 

therefore is entitled to proof of his conduct by original evidence, 
where it can be had ; excluding all declarations of the principal, 
made subsequent to the act, to which they relate, and out of the 
course of his official duty. Thus, where one guaranteed the pay- 
ment for such goods as the plaintiffs should send to another, in 
the way of their trade, it was held, that the admissions of the 
principal debtor, that he had received goods, made after the time 
of their supposed delivery, were not receivable in evidence against 
the surety.^ So, if one becomes surety in a bond, conditioned 
for the faithful conduct of another as clerk, or collector, it is held, 
that, in an action on the bond ag?iinst the surety, confessions of 
embezzlement, made by the principal after his dismissal, are not 
admissible in evidence ; ^ though, with regard to entries made in 
the course of his duty, it is otherwise.^ A judgment, also, ren- 
dered against the principal, may be admitted as evidence of that 
fact, in an action against the surety.* On the other hand, upon 
the same general ground, it has been held, that, where the surety 
confides to the principal the power of making a contract, he con- 
fides to him the power of furnishing evidence of the contract ; 
and that, if the contract is made by parol, subsequent declara- 
tions of the principal are admissible in evidence, though not con- 
clusive. Thus, where a husband and wife agreed, by articles, to 
live separate, and C, as trustee and surety for the wife, cove- 
nanted to pay the husband a sum of money, upon his delivering 
to the wife a carriage and horses for her separate use, it was 
held, in an action by the husl^and for the money, that the wife's 
admissions of the receipt by her of the carriage and horses were 
admissible.^ So, where A guaranteed the performance of any 
contract that B might make with C, the admissions and declara- 
tions of B were held admissible against A, to prove the contract.^ 
§ 188. Same subject. But where the surety, being sued for 
the default of the principal, gives him notice of the pendency of 
the suit, and requests him to defend it ; if judgment goes against 

1 Evnns y. Bcattie, 5 Esp. 20 ; Bacon Ycatcs, 128 ; IIotclikissi'.Lyon, 2Blackf, 
r. Clu'sncy, 1 Stark. 192; Longenccker 222; Sholbv )-. Tlie Governor, &c., Id. 
V. Hyde, (J Binn. 1. 289 ; Boall 'v. Beck, 3 liar. & Mclkn. 212. 

2 Smith V. Wliittinpliam, 6 C. & P. 78. » Wliitnash r. George, 8 B. & C. 55(3 ; 
See also Goss v. Watlington, 3 B. & B. Middleton i'. Melton, 10 B. & C. 317; 
132 ; Cutler v. Newlin, Manning's Digest, McGahey v. Alston, 2 M. & W. 213. 214. 
N. P. 137, per Ilolroyd, J., in 1819 ; * Drummond v. Prestman, 13 Wheat. 
Dawes v. Sliedd, 15 Mass. 0, 9 ; Foxcroft 515. 

V. Nevins, 4 Greenl. 72; Hayes v. Seaver, ^ Fenner v. Lewis, 10 .Johns. ']8. 

7 Greenl. 237 ; Kespublicu v. Davis, 3 ^ Meade v. McDowell, 6 Binn. 195. 



CHAP. XI.] OF ad:sussions. 225 

the surety, the record is conclusive evidence for him, in a subse- 
quent action against the principal for indemnity ; for the princi- 
pal has thus virtually become party to it. It would seem, therefore, 
that in such case the declarations of the principal, as we have 
heretofore seen, become admissible, even though they operate 
against the surety.^ 

§ 189. Privity. The admissions of one person are also evi- 
dence against another, in respect of privity between them. The 
term privity denotes mutual or successive relationship to the 
same rights of property ; and privies are distributed into several 
classes, according to the manner of this relationship. Thus, 
there are privies in estate, as donor and donee, lessor and lessee, 
and joint-tenants ; privies in blood, as heir and ancestor, and 
coparceners ; privies in representation, as executors and testator, 
administrators and intestate ; privies in law, where the law, with- 
out privity of blood or estate, casts the land upon another, as by 
escheat. All these are more generally classed into privies in 
estate, privies in blood, and privies in law.^ The ground upon 
which admissions bind those in privity with the party making 
them is, that they are identified in interest ; and, of course, the 
rule extends no farther than this identity. The cases of coparce- 
ners and joint-tenants are assimilated to those of joint-promisors, 
partners, and others having a joint interest, which have already 
been considered.^ In other cases, where the party, by his admis- 
sions, has qualified his own right, and another claims to succeed 
him as heir, executor, or the like, he succeeds only to the right, 
as thus qualified, at the time when his title commenced ; and the 
admissions are receivable in evidence against the representative, 
in the same manner as they would liave been against the party 

1 See supra, § 180, n. (8), and cases ger; privity in estate alone, between the 
tliere cited. [See Powers v. Nash, 37 lessee and the grantee of tlie reversion ; 
Maine, 322.] and privity in both estate and contract, 

2 Co. Lit. 271 a ; Carver v. Jackson, 4 as between lessor and lessee, &c. ; but 
Peters, 1,83; Wood's Inst. L. L. Eng. these are foreign from our present pur- 
236; Tonilin's Law Diet, in verb. Priv- pose. See Wail<er's case, 3 Co. 23; Bev- 
ies. But the admissions of executors and erley's case, 4 Co. 123, 124; supra, §§ 19, 
administrators are not receivable against 20, 23, 24. [Declarations by a former 
their coexccutors or coadministrators, owner of property under whom the party 
Elwood V. Deifendorf, 5 Barb. S. C. 398. claims title are, in general, evidence, if 
Other divisions have been recognized ; made during the existence of liis title, 
namely, privity in tenure between land- Hay ward Rubber Co. r. Duncklee, .30 Vt. 
lord and tenant ; privity in contract alone, 29. See also Wheeler v. McCorristen, 
or tlie relation between lessor and lessee, 24 111. 210 ; Norton v. Kearney, 10 Wis. 
or heir and tenant in dower, or by the 443.] 

curtesy, by the covenants of the latter, ' Supra, §§ 174, 180. 

after he has assigned his term to a stran- 
VOL. I. 15 



226 



LAW OF EVIDENCE. 



[PABT n. 



represented. Thus, the declarations of the ancestor, that he held 
the land as the tenant of a third person, are admissible to show 
the seisin of that person, in an action brought by him against the 
heir for the land.i Thus, also, where the defendant in a real 
action relied on a long possession, he has been permitted, in 
proof of the adverse character of the possession, to give in evi- 
dence the declarations of one under whom the plaintiff claimed, 
that he had sold the land to the person under whom the defend- 
ant claimed.2 And the declarations of an intestate are admissi- 
ble against his administrator, or any other claiming in his right.^ 
The declarations, also, of the former occupant of a messuage, in 
respect of which the present occupant claimed a right of common, 
because of vicinage, are admissible evidence in disparagement of 
the right, they being made during his occupancy ; and, on the 
same principle, other contemporaneous declarations of occupiers 
have been admitted, as evidence of the nature and extent of their 
title, against those claiming in privity of estate.^ Any admission 
by a landlord in a prior lease, which is relative to the matter in 
issue, and concerns the estate, has also been held admissible in 
e\'idence against a lessee who claims by a subsequent title. ^ 



1 Doe V. Pcttett, 5 B. & Ad. 223 ; 2 
Poth. on Obi. by Evans, p. 254 ; suiira, 
§§ 108, 100, and cases tbere cited. 

2 Brattle Street Church v. Hubbard, 2 
Met. 303. And see Podgett v. Lawrence, 
10 Paige, 170 ; Dorsey v. I^orsey, 3 H. & 
J. 410 ; Clary v. Grimes, 12 G. & J. 31. 
[A tenant for life cannot prejudice the 
estate by his admissions, but a tenant 
in tail may. Pendleton v. Booth, 1 Gill. 
45 ; Taylor, Ev. § 687 a, and cases there 
cited.] 

3 Smith V. Smith, 3 Bing. N. C. 29 ; 
Ivat V. Finch, 1 Taunt. 141. 

4 Walker ;-. Bromlstock, 1 Esp. 458; 
Doe V. Austin, 9 Bing. 41 ; Davios r. 
Pierce, 2 T. li. 53 ; Doe v. Rickarby, 5 
Esp. 4 ; Doe v. Jones, 1 Campb. 307, 
Ancient maps, books of survey, &c., 
thougli mere private documents, are fre- 
quentl}^ admi.s.sibie on tlii.s ground, where 
there is a jjrivity in estate between the 
former ])roprietor, under whose direction 
they were made, and tlie present claim- 
ant, against whom they are oHered. Bull. 
N. 1*. 283 ; Briguum v. .Jennings, 1 Ld. 
Raym. 734 [snpm, § 145, n.j. So, as 
to receij)ts for rent. l>y a furmer grantor, 
under wiiom both parties claimed. Doe 
V. Seaton, 2 Ad. & 101. 171. 

5 Crease v. Barrett, 1 Crompt. Mees. 



& R. 919, 932. See also Doe r. Cole, 6 
C. & P. 359, that a letter written by a for- 
mer vicar, respecting the property of the 
vicarage, is evidence against his successor, 
in an ejectment for tlie same property, in 
right of his vicarage. The receipts, also, 
of a vicar's lessee, it seems, are admissible 
against the vicar, in proof of a modus, by 
reason of tlie privit\' between them. .Jones 
V. Carrington, 1 C. & P. 329, 330, n. ; 
Maddison v. Nuttal, 6 Bing. 226. So, the 
answer of a former rector. De Wlielp- 
dale V. Milburn, 5 Pri'ce, 485. An answer 
in chancery is also admi.vsible in evidence 
against any person actually claiming un- 
der the party wiio put it in; and it has 
been held priuKi Jiirie evidence against 
persons general!}' reputed to claim under 
him, at least so far as to call upon them to 
show another title from a stranger. Farl 
of Sussex ?'. Temple, 1 -lA. Kavm. 310; 
Countess of D.-irtmoutli v. lioberts, 16 
East, 334, 339, 340. So, of other declara- 
tions of the former party in possession, 
which wotdd have been good against him- 
self, and were made while he was in pos- 
session. Jackson v. Bard, 4 Johns. 230, 
231; Norton r. Pettibone, 7 Conn. 319; 
Weidman r. Kohr, 4 Serg. & R. 174; su- 
pra, §§ 2;'), 24. [The declarations of the 
intestate are evidence against his admin- 



CHAP. XI.] 



OF ADisnssioisrs. 



227 



§ 190. Assignors as against assignee. The same principle lloMs 
in regard to admissions made hy the assignor of a personal con- 
tract or chattel, previous to the assignment, wliile he remained 
the sole proprietor, and where the assignee must recover through 
the title of the assignor, and succeeds only to that title as it stood 
at the time of its transfer. In such case, he is bound by the pre- 
vious admissions of the assignor, in disparagement of his own 
apparent title. But this is true onl}^ where there is an identity 
cf interest between the assignor and assignee ; and such iden- 
tity is deemed to exist not only where the latter is expressly the 
mere agent and representative of the former, but also where the 
assignee has acquired a title with actual notice of the true state 
of that of the assignor, as qualified by the admissions in question, 
or where he has purchased a demand already stale, or otherwise 
infected with circumstances of suspicion.^ Thus, the declarations 
of a former holder of a promissory note, negotiated before it was 
overdue, showing that it was given without consideration, though 
made while he held the note, are not admissible against the in- 
dorsee ; for, as was subsequently observed by Parke, J., " the 
right of a person, holding by a good title, is not to be cut down 
by the acknowledgment of a former holder that he had no title." ^ 



istrator, as a privy by representation, 
■upon the question of having made a dona- 
tio mortis causa. Smith v. Maine, 25 Barb. 
33.] 

^ Harrison v. Vallance, 1 Bing. 38; 
Bayley on Bills, by Pliillips and Sewall, 
pp. 502, 503, and notes (2d Am. ed.) ; 
Gibblehouse v. Strong, 3 Rawle, 487 ; 
Hatch V. Dennis, 1 Fairf. 244; Snelgrove 
V. Martin, 2 McCord, 241, 243. '[The 
declarations and admissions of an assignor 
of personal property, as a patent-right, 
made after lie has parted with his interest 
in it, are inailmissible either to show a 
■want of title in him, or to affect the qual- 
ity of the article, or to impair the right of 
the purchaser in anv respect. Bv Nelson, 
J., Many v. Jagger, 1 Blatchf. C. C. 
872, 376.] 

■^ Barough v. White, 4 B. & C. 325, 
explained in Woolwav v. Rowe, 1 Ad. & 
3':i. 114, 110 [I'hillips" V. Cole, 10 A. & 
E. 100] ; Shaw v. Broom, 4 D. & R. 
730; Smith v. De Wruitz, Ky. & M. 212; 
Beanchamp v. Parry, 1 B. & Ad. 89 ; 
Hackett v. Martin, 8 Greenl. 77 ; Parker 
V. Grout, 11 Mass. 157, n. ; Jones v. Win- 
ter, 13 Mass. 304 ; Dunn v. Snell, 15 Mass. 
481; Paige v. Cagwin, 7 Hill (N. Y.), 



361 . In Connecticut, it seems to have been 
held otherwise. Johnson ;;. Blackman, 
11 Conn. 342; Woodruff v. Westcott, 12 
Conn. 134. So in Vermont. Sargeant v. 
Sargeant, 3 Waslib. 371. [The statements 
of an insolvent debtor, whether made be- 
fore or after a sale alleged to be fraudu- 
lent, as to the value of the property sold, 
and of his other property, are inadmissible 
against his assignee in insolvency, to show 
that the sale was in good faith in a suit by 
the assignee against the purchaser of said 
property to recover its value. Heywood 
V. Reed, 4 Gray, 574. See also Jones v. 
Church, &c., 21 Barb. 161. As a general 
rule, the declarations of the assignor in 
the case of an alleged fraudulent sale are 
not admissible evidence against the as- 
signee, unless made before the assign- 
ment, and with a view to show its pur- 
pose, so as to form part of the res pestxe. 
But if made while the assignor remained 
in possession, although after the execution 
of the assignment, they are held competent 
to characterize the transaction. Adams 
V. Davidson, 10 N. Y. Ct. App. 309. And 
where acombination between the assignor 
and assignee is previously established, the 
declarations of the assignor will be evi- 



228 



LAW OF EVIDENCE. 



[PAET II. 



But, in an action by the indorsee of a bill or note dishonored 
before it was negotiated, the declarations of the indorser, made 
while the interest was in him, are admissible in evidence for the 
defendant.^ 

§ 191. Mode of proof. These admissions by third persons, as 
they derive their value and legal force fi'om the relation of the 
party making them to the property in question, and are taken as 
parts of the res gestce, may be proved hy any competent witness, who 
heard them, without calling the party by whom they were made. 
The question is, whether he made the admission, and not merely 
whether the fact is as he admitted it to be. Its truth, where the 
admission is not conclusive (and it seldom is so), may be contro- 
verted by other testimony : even by calling the party himself, 
when competent ; but it is not necessary to produce him, his dec- 
larations, when admissible at all, being admissible as original evi- 
dence, and not as hearsay.^ 

§ 192. Time and circumstance. We are next to consider the 
time and circumstances of the admission. And here it is to be 



dence against the assignee to the fullest 
extent, although made after the assign- 
ment. Cuyler v. McCartney, 33 Barb. 
165.] 

1 Bayley on Bills, 502, 503, and notes 
(2d Am. ed. by Phillips & Sewall) ; Pocock 
t'. Billings, Ky. & M. 127. See also Story 
on Bills, § 220; Chitty on Bills, 650 (8th 
ed.); Hatfh v. Dennis, 1 Fairf. 249; 
Shirley c. Todd, 9 Greenl. 83. [In a suit 
against the maker of a promissory note 
by one who took it when overdue, the 
declarations of a prior holder, made while 
he held tlie note, after it was due, are 
admissible in evidence to sliow payment 
to such prior holder, or any riglit of set-off 
which tlie maker had against him. But 
Buch dechirations, made by sucli holder 
before lie took the note, are inadinissil)le. 
So sucli declarations, made V\v such holder 
after assigning tlie note to one from whom 
the plaintiff since took it, are inadmissible, 
unless sucli assignment was conditioned 
to be void upon the payment to the as- 
signor of a less sum than the amount due 
on the note; in which case such declara- 
tions are admissible in evidence for the 
defendant to the extent of the interest 
remaining in such prior holder. Bond v. 
Fitzpatrick, 4 Gray, 89. 02; Sylvester 
t'. Crapo, 15 Pick. 02; Fisher v. True, 38 
Maine, 534; McLanathan v. Patten, 39 
Id. 142; Scanmion r. Scammon, 83 N. H. 
62, 68; Griddle v. Griddle, 21 Mo. 6r2. 



See Jcrmain v. Denniston, 6 N. Y. Ct. 
App. 270; Booth v. Swezey, 8 Id. 276; 
Tousley v. Barry, 16 Id. 497. The prac- 
tice in the different States, in regard to 
admitting the declarations of the owner of 
a chose in action, while holding the same, 
it not being negotiable, or, if so, being at 
the time overdue, to the effect that tlie 
iame had been paid, or is otherwise in- 
vahd, and this as against a subsequent 
bonajide owner, is not uniform. See Mil- 
ler V. Bingham, 29 Vt. 82, where such 
declarations were held admissible. The 
eases cited above from New York show 
that such declarations are not there ad- 
missible. The English rule seems in 
favor of receiving such declarations, as to 
the title of all personalty. Harrison >: 
Vallance, 1 Bing. 45; Shaw v. Broom, 4 
Dow. & Ry. 730 ; Pocock v. Billing, 2 
Bing. 269. But see Carpenter v. llollis- 
ter, 13 Vt. 552, where the question as to 
real estate is fully discussed. Where 
goods are claimed by virtue of a pledge, 
declarations in disparagement of his title 
made by the pledgor, before he made the 
pledge, are admissible without calling him 
as a witness. Alger v. Andrews, 47 Vt. 

oou 1 

^ ^ Supra, §§ 101, 113, 114, and cases 
there cited ;" Clark v. llougham, 2 B. & 
C. 149; Mountstephen v. lirooke, 3 B. 
& Aid. 141 ; Woolway v. Howe, 1 Ad. & 
El. 114; Payson v. Good, 3 Kerr, 272. 



CHAP. XI.] 



OF AD]\nSSIONS. 



229 



observed that confidential overtures of pacification, and any other 
offers or propositions betAveen litigating parties, expressly stated 
to be made "vvitliout prejudice, are excluded on grounds of public 
policy.^ For, without this protective rule, it would often be diffi- 
cult to take any step towards an amicable compromise or adjust- 
ment. A disting;tion is taken between the admission of particular 
facts and an offer of a sum of money to buy peace. For, as Lord 
Mansfield observed, it must be permitted to men to buy their 
peace without prejudice to them, if the offer should not succeed ; 
and such offers are made to stop litigation, without regard to the 
question whether any thing is due or not. If, therefore, the de- 
fendant, being sued for XlOO, should offer the plaintiff' £20, this 
is not admissible in evidence, for it is irrelevant to the issue ; it 
neither admits nor ascertains any debt ; and is no more than say- 
ing, he would give X20 to be rid of the action.^ But, in order 
to exclude distinct admissions of facts, it must appear either that 
they were expressly made without prejudice, or, at least, that they 
were made under the faith of a pending treaty, and into which 
the party might have been led by the confidence of a compromise 
taking place. But, if the admission be of a collateral or indiffer- 
ent fact, such as the handwriting of the party, capable of easy 
proof by other means, and not connected with the merits of the 
cause, it is receivable, though made under a pending treaty.^ It 



1 Cory V. Bretton, 4 C. & P. 462; 
Healey v. Thatcher, 8 C. & P. 388. Com- 
munications between the clerk of the 
plaintiff's attorney, and the attorney of 
the defendant, with a view to a compro- 
mise, have been held privileged, under this 
ride. Jardine v. Sheridan, 2 C & K. 24. 
[In Jones i'. Foxall, 13 Eng. Law & Eq. 
140, 145, Sir John Romilly, Master of the 
Rolls, said : " I shall, as far as I am able, 
in all cases, endeavor to suppress a prac- 
tice whicli, when I was first acquainted 
with the profession, was rarely, if ever, 
ventured upon, but whicli, according to 
my experience, has been common of late ; 
namely, that of attempting to convert of- 
fers of compromise into admissions and 
acts prejudicial to the parties making 
them. If tliis were permitted, the effect 
would be that no attempt to compromise 
a suit would ever be made. If no reser- 
vation of the parties who make an offer 
of compromise could pre vent that offer and 
tiie letters from being afterwards given in 
evidence, and made use of against them, 
it is obvious that no such letters would be 



written or offers made. In my opinion, 
such letters and offers are admissible for 
one purpose only, i.p., to show that an at- 
tempt has been made to compromise tlie 
suit, which may be sometimes necessary ; 
as, for instance, in order to account for 
lapse of time, but never to fix the persons 
making them with admissions contained 
in such letters ; and I shall do all I can to 
discourage this, which I consider to be a 
very injurious practice."] 

2 Bull. N. P. 236 ; Gregory v. Howard, 
3 Esp, 118, Ld. Kenyon ; Marsh v. Gold. 
2 Pick. 290 ; Gerrish v. Sweetser, 4 Pick. 
374, 377; Wayman v. Hilliard, 7 Bing. 
101; Gumming v. French, 2 Campb. 106, 
n. ; Glassford on Evid. p. 330. See Moly- 
neaux v. Collier, 13 Geo. 400. But 
an offer of compromise is admissible, 
where it is only one step in the proof that 
a compromise has actually been made. 
Collier v. Nokes, 2 C. & K. 1012. 

"* Waldridge v. Kenison, 1 Esp 143, 
per Lord Kenyon. The American courts 
have gone farther, and held, that evidence 
of the admission of any independent fact 



230 



LAW OF EVIDENCE. 



[part n. 



is the condition, tacit or express, that no advantage shall be taken 
of tlie admission, it being made with a view to, and in further- 
ance of, an amicable adjustment, that operates to exclude it. But, 
if it is an independent admission of a fact, merely because it is a 
fact, it will be received ; and even an offer of a sum, by way of 
compromise of a claim tacitly admitted, is receivable, unless accom- 
panied with a caution that the offer is confidential.^ 

§ 193. Constraint. In regard to admissions made binder circum- 
stances of constraint^ a distinction is taken between civil and crim- 
inal cases ; and it has been considered, that, on the trial of civil 
actions, admissions are receivable in evidence, provided the com- 
pulsion under which they are given is legal, and the party was 
not imposed upon, or under duress.^ Thus, in the trial of Collett 
V. Lord Keith, for taking the plaintiff's ship, the testimony of the 
defendant, given as a witness in an action between other parties, 
in which he admitted the taking of the ship, was allowed to be 
proved against him ; though it appeared that, in giving his evi- 
dence, when he was proceeding to state his reasons for taking the 
ship, Lord Kenyon had stopped him by saying it was unnecessary 
for him to vindicate his conduct.^ The rule extends also to 



is receivable, tliougli made during a treaty 
of compromise. See Mount v. Bogert, 
Anthon's Hep. 190, per Thompson, C.J. ; 
Murray v. Coster, 4 Cowen, 035; Fuller 
V. Hampton, 5 Conn. 416, 426; Sanborn 
V. Neilson, 4 N. H. 501, 608, 5UU ; IX'logny 
r. Kcntoul, 1 Martin, 175; Marvin ;'. 
Riclimond, 3 Den. 58; Cole o. Cole, 34 
Maine, 542 [Harrington v. Lincoln, 4 
Gray, 563, 567 ; Corinth v. Lincoln, 34 
Maine, 310]. Lord Kenyon afterwards 
rela.xed his own rule, saying that in future 
lie should receive evidence of all admis- 
sions, such as the party would be obliged 
to make in answer to a bill in equity ; re- 
jecting none but such as are merely con- 
cessions for the sake of making peace and 
getting rid of a suit. Slack v. Huchanan, 
Peake's Cas. 5, 6; Tait on Evid. p. 293. 
A letter written by the adverse party, 
" without prejudice," is inadmissible. 
llealey v. Thatcher, 8 C. & P. 3»8. [ But 
the writer of such a letter is not precluded 
from using it in his own favor. Williams 
V. Thomas, 2 Drew. & Sm. 2'J.] 

1 Wallace v. Small. 1 M. & M. 440 ; 
Watts V. Lawson. I<1. 447, n. ; Dickinson 
V. Dickinson, 9 Met. 471 ; Thompson v. 
Austen, 2 Dowl. & Hy. 358. In this case 
Bay ley, J., remarked that the essence of 
an offer to compromise was, that the party 



making it was willing to submit to a sacri- 
fice, and to make a concession. Hartford 
Bridge Co. v. Granger, 4 Conn. 148 ; Ger- 
rish V. Sweetser, 4 Pick. 374, 377 ; Murray 
V. Coster, 4 Cowen, 617, 635. Admissions 
made before an arbitrator are receivable 
in a subsequent trial of the cause, the 
reference having proved ineffectual. 
Slack V. Buchanan, Peake's Cas. 5. See 
also Gregory v. Howard, 3 Esp. 113. 
Collier v. Nokes, 2 C. & K. 1012. [Where 
a party sued on a note offered to pay one 
half in cash, and ime half by a new note 
with an indorser, and admitted at the 
same time that he owed the note, it was 
lield that the admission might be used 
against him. Snow v. Batchelder, 8 Cush. 
613.] 

2 [The rule excluding confessions 
made under undue influence Mpi)lies only 
to the confessions of a ])erson on trial in 
a criminal case. Newliall v. Jenkins, 2 
Gray, 562.] 

3 Collett V. Lord Keith, 4 Esp. 212, per 
Le Blanc, J., who remarked, that the 
manner in which the evidence had been 
obtained might be matter of observation 
tothe jury ; but that, if what was said bore 
in any way on the issue, he was bound to 
receive it as evidence of the fact itself. 
See also Milward v. Forbes, 4 Esp. 171. 



CHAP. XI.] OF ADl^nSSIONS. 231 

answers voluntarily given to questions improj^erly asked, and to 
wliich the witness might successfully have objected. So, the vol- 
untary answers of a banfaupt before the commissioners are evi- 
dence in a subsequent action against the party himself, though 
he might have demm-red to the questions ; or the whole exami- 
nation was irregular,! unless it was obtained by imposition or 
duress. 2 

§ 194. Direct and incidental. There is no difference, in regard 
to the admissibility of this sort of evidence, between direct admis- 
sions and those which are incidental, or made in some other con- 
nection, or involved in the admission of some other fact. Thus, 
where, in an action against the acceptor of a bill, his attorney 
gave notice to the plaintiff to produce at the trial all papers, &c., 
which had been received by him relating to a certain bill of ex- 
change (describing it), wliich "was accepted by the said defend- 
ant ; " this was held prima facie evidence, by admission that he 
accepted the bill.^ So, in an action by the assignees of a bank- 
rupt, against an auctioneer, to recover the jDroceeds of sales of a 
bankrupt's goods, the defendant's advertisement of the sale, in 
which he described the goods as " the property of D., a bankrupt," 
was held a conclusive admission of the fact of bankruptcy, and 
that the defendant was acting under his assignees.* So, also, an 
undertaking by an attorney, "to appear for T. and R., joint-own- 
ers of the sloop ' Arundel,' " was held sufficient prima facie evi- 
dence of ow^nersliip.^ 

§ 195. Assumed character. Other admissions are implied from 
assumed character, language, and conduct, which, though hereto- 
fore adverted to,^ ma}'" deserve further consideration in this place. 
Where the existence of any domestic, social, or official relation 
is in issue, it is quite clear that any recognition, in fact, of that 

1 Stockfleth V. De Tastet, 4 Campb. in a criminal prosecution. Rex r. Brit- 

10 ; Smith v. Beadnell, 1 Campb. 30. If ton, 1 M. & Rob. 207. The case of Rex v. 

tlie commission has been perverted to im- Merceron, 2 Starli. 366, which seems to 

proper purposes, the remedy is by an the contrary, is questioned and explained 

application to have the examination taken by Lord Tenterden, in Rex v. Gilham, 1 

from the files and cancelled. 4 Campb. Mood. Cr. Cas. 203. See infra, §§ 225, 

11, per Ld. Ellenborongh ; Milward v. 451 ; Reg. v. Garbett, 1 Denis. C. C. 236. 
Forbes, 4 Esp. 171 ; 2 Stark. Evid. 22. 3 Holt v. Squire, Ry. & M. 282. 

- Robson V. Alexander, 1 Moore & P. * Maltby v. Christie, 1 Esp. 342, as 

448; Tucker v. BaiTow, 7 B. & C. 623. expounded by Lord Ellenborough, in 

But a legal necessity to answer the ques- Rankin v. Horner, 16 East, 193. 
tions, under peril of punishment for con- 5 Marshall v. Cliff, 4 Campb. 133, per 

tempt, it seems, is a valid objection to Ld. Ellenborough. 
the admission of the answers in evidence, ^ Supra, § 27. [And see post, § 207.] 



2Z'Z 



LAW OF EVIDENCE. 



[pAKT n. 



relation, is prima facie evidence against the person making such 
recognition, that the relation exists.^ This general rule is more 
frequently applied against a person who has thus recognized the 
character or office of another ; but it is conceived to embrace, in 
its principle, any representations or language in regard to him- 
self. T]ius, where one has assumed to act in an official character, 
this is an admission of his appointment or title to the office, so 
far as to render him liable, even criminally, for misconduct or 
neglect in such office.^ So, where one has recognized the official 
character of another, by treating with him in such character, or 
otherwise, this is at least prima facie evidence of his title, against 
the party thus recognizing it.^ So, the allegations in the declara- 
tion or pleadings in a suit at law have been held receivable in 
evidence against the party, in a subsequent suit between him 
and a stranger, as his solemn admission of the truth of the facts 
recited, or of his understanding of the meaning of an instrument ; 
though the judgment could not be made available as an estoppel, 
unless between the same parties, or others in privity with them.* 



1 Dickinson v. Coward, 1 B. & A. 677, 
679, per Ld. Ellenboroiigh ; Radford, q. t. 
V. Mclntosli, 3 T. R. 632. 

2 Bevan v. Williams, 3 T. R. 635, per 
Ld. Mansfield, in an action against a cler- 
gyman, for non-residence ; Rex v. Gard- 
ner, 2 Campb. 513, against a military 
officer, for returning false musters; Rex 
r. Kerne, 2 St. Tr. 957, 960; Rox v. 
Brommick, Id. 961,962; Rex v. Atkins, 
Id. 96i, wliich were indictments for high 
treason, being popish priests, and remain- 
ing forty days witiiin the kingdom ; Rex 
V. Borrett, 6 C. & P. 124, an indictment 
ajjainst a letter-carrier, for embezzle- 
ment ; Trowbridge v. Baker, 1 Cowen, 
251, against atoll-gatherer, for penalties ; 
Lister"?;. Priestley, VVightw. 07, against a 
collector, for penalties. See also Cross 
V. Kave, 6 T. R. 063; Lipscombe v. 
Holmes, 2 Campb. -ill ; Radford v. Mc- 
intosh, 3 T. R. 632. 

3 Peacock v. Harris, 10 East, 104, by 
a renter of turnpike tolls, tor arrearages 
of tolLs due ; Uadford v. Mcintosh, 3 T. 
R. 0:52, by a farnu'r-general of tlie post- 
horse duties, against a letter of horses, 
for certain statute penalties; Pritchard 
V. Walker, 3 C. & P. 212. by the clerk of 
the trustees of a turnpike roail, against 
one of the trustees ; Dickinson v. Coward, 
1 B. & A. 677. by tlie assignee of a bank- 
rupt, against a debtor, wiio had made 
the assignee a partial payment. In Ber- 



ryman v. Wise, 4 T. R. 366, which was 
an action by an attorney for slander, in 
charging him with swindling, and threat- 
ening to have him struck off the roll of 
attorneys, the court held that this threat 
imported an admission that the plaintiff 
was an attorney. Cummin c. Smith, 2 
Serg. & R. 440. But see Smith v. Taylor, 
1 New R. 196, in which the learned judges 
were equally divided upon a point some- 
what similar, in the case of a physician ; 
but, in the former case, the roll of attor- 
neys was expressly mentioned, while in 
the latter, the plaintiff was merely spoken 
of as " Doctor S.," and the defendant had 
been employed as his apothecary. If, 
however, the slander relates to the want 
of qualification, it was held by Mansfield, 
C. J., that the plaintiff must ])rove it ; 
but not where it was confined to mere 
miscoiuluct. 1 New R. 207. See to this 
point, Moises v. Thornton, 8 T. R. 303; 
Wilson V. Carnegie, 1 Ad. & El. 695, 703, 
per Ld. Denman, C. J. See further, 
Divoll V. Leadl)ettcr, 4 Pick. 220; Crofton 
V. Poole, 1 B. & Ad